C. & O. R. R. Co. v. Brown, Admx., et al.
| Citation | 152 Ky. 479 |
| Parties | Chesapeake & Ohio R. R. Co. v. Brown, Admx., et al. |
| Decision Date | 26 February 1913 |
| Court | Kentucky Court of Appeals |
Appeal from Shelby Circuit Court.
WILLIS, TODD & BOND and SHELBY & SHELBY, for appellant.
CHARLES CARROLL, JOSEPH M. LEE, T. C. CARROLL and G. L. PICKETT, for appellee.
This is an appeal from a judgment for $11,000.00 damages, for the death of R. J. Brown, a brakeman in the service of appellant.
On the morning of December 24, 1911, appellant's passenger train No. 22 left Louisville for the East, about nine o'clock. Early on the same day appellant's passenger train No. 21 left Ashland, Ky., going west, and bound for Louisville. According to the schedule time, these trains should have met at Shelbyville, where the dining-car attached to the west-bound train (No. 21) was to be transferred to the east-bound train (No. 22); but, as No. 21 was late on this occasion, they met at Hatton, in the eastern edge of Shelby County and about 18 miles east of Shelbyville. Approaching Hatton from the west there is a decided descending grade in the road bed, the grade being downward toward the east. Train No. 21 having reached Hatton first, and having the right-of-way, remained upon the main track; train No. 22 going upon a side track upon its arrival shortly afterwards. Train No. 22 from Louisville was in charge of conductor Burch; Smith being the engineer; R. J. Brown, the deceased, being brakeman; and Charles Brown, the porter. The west bound (No. 21) was in charge of conductor Ridgeway, with Underwood as brakeman. The engineer of No. 21 set the air brakes for the purpose of holding his train on the incline. For the purpose evidently of saving time, and while waiting the arrival of No. 22, Underwood uncoupled the air hose between the sleeper and the "Diner," which constituted a part of train No. 21. This process "set" the air on the "Diner;" and, in railroad parlance, the brakes "stuck." Shortly thereafter No. 22 came in and took the side track; and when No. 21 tried to go out and up the hill, it could not move the dining-car, because its brakes were "stuck;" whereupon Underwood turned the cock on the drum of the "Diner" and let the air escape. Train No. 21 then pulled up the hill towards Louisville; and when it had gone about 600 or 700 feet, and cleared the point of the switch, it detached the dining-car, and proceeded on its way to Louisville, leaving the dining-car standing upon the grade. Train No. 22 immediately started to back up slowly so as to attach the "Diner" to it. There being no air in the brakes on the dining-car, it started to move down the grade toward train No. 22, which was backing up the grade. Brown was on the rear platform of the rear sleeper of train No. 22, standing by Conductor Burch, the porter being nearby. Seeing that the train and the "Diner" were moving toward each other, and would probably collide if not stopped, Brown jumped from the sleeper and signalled engineer Smith to stop the train; and, at the same time, ran toward the "Diner" for the purpose of stopping it. But, shortly after he reached the "Diner," and while attempting to turn the angle cock which controlled the air brakes on the "Diner," he was caught between the "Diner" and the rear sleeper on the end of train No. 22, and instantly killed.
Appellant assigns four grounds for a reversal; (1) instruction No. 1 directed the jury to find for the plaintiff if they believed the injury occurred through the negligence of brakeman Underwood of train No. 21, who was, as appellant claims, a fellow-servant of Brown, who was brakeman of No. 22; (2) said instruction permitted the plaintiff to recover upon the hypothesis that those in charge of the dining-car were negligent after it was cut loose from train No. 21, those persons being likewise fellow-servants with Brown; (3) said instruction erroneously submitted to the jury the question of the defective hand-brakes on the dining-car, when there was no evidence that they were defective; and, (4) that a peremptory instruction should have been given for appellant, because Brown came to his death by his own gross contributory negligence.
There is quite a conflict in the testimony as to the relative positions of the "Diner" and train 22, up to a very few moments before the accident occurred. The testimony tends to show that train No. 21 ran about 600 or 700 feet west when it stopped and detached the Diner; and Sudduth, who was the conductor in charge of the dining-car says it rolled back eastwardly about 60 yards before it collided with train 22. In this he is corroborated by Perkins, who was sitting upon a porch near the track and watching the train at the time of the accident. Perkins having indicated the point where the "Diner" started and the point of collision, they were, by measurement, found to be 216 feet apart. It also appears from Perkins' testimony that after Brown gave the signal to engineer Smith to stop train No. 22, it moved westwardly 104 feet; that the distance between the rear end of train 22 and the "Diner," when Brown reached the "Diner," was between 20 and 28 feet, and that while Brown was working at the angle cock of the "Diner," it moved from 5 to 10 feet. The evidence further shows that if the angle cock had worked, it would have stopped the "Diner" within three or four feet, at the rate it was then going. Furthermore, when it became apparent that a collision was imminent, one or more of the waiters on the "Diner" attempted to stop it by using the hand-brakes, which failed to work. Smith, the engineer, admits he got Brown's signal, and says he obeyed it and stopped the train; but in this, the weight of the testimony is decidedly against him. Perkins is not only a disinterested witness, but he had, by far, the best opportunity of seeing all that happened; and not only his testimony, but that of others, as well as the point where the collision occurred, all strongly contradict Smith. It further appears that immediately before the collision, the conductor, Burch, and perhaps the porter, called out to Brown to get out of the way, but he evidently did not hear it, at least not in time to heed the warning.
It is insisted for appellee that appellant's employes were negligent, (1) in cutting the dining-car loose from train No. 21 and permitting it to roll down the grade toward train 22; (2) in failing to have the dining-car equipped with proper hand-brakes and air-brakes; (3) in failing to stop train 22 after Brown had given the signal to stop; and, (4) as a question of law, it was the right and duty of Brown, under the circumstances, to attempt to stop the "Diner" in order to prevent a collision, provided in so doing he used such care as an ordinarily prudent person would have used under the circumstances.
Appellant's first and second grounds for a reversal rest upon the contention that Underwood, the brakeman on No. 21, as well as those in charge of the dining-car after it was cut loose from train No. 21, were fellow-servants with Brown. Waiving, for the present, the question of appellant's negligence in leaving the "Diner" standing detached upon a heavy grade, as it did, we will consider the fellow-servant doctrine in so far as it may be applicable to this case.
In the earlier cases of L. & N. R. R. Co., v. Robinson, 4 Bush, 507; L. & N. R....
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