Chesapeake & O. Ry. Co. v. Yates

• Decision Date: 20 March 1951
• Parties: CHESAPEAKE & O. RY. CO. v. YATES.
• Court: United States State Supreme Court — District of Kentucky

Page 953

239 S.W.2d 953

CHESAPEAKE & O. RY. CO. v. YATES.

Court of Appeals of Kentucky.

March 20, 1951.

Rehearing Denied June 22, 1951.

Browning & Gray, Ashland, Combs & Combs, Prestonsburg, for appellant.

Joseph D. Harkins, Sr., Joseph D. Harkins, Jr., Prestonburg, for appellee.

MILLIKEN, Justice.

This action was brought by Bossie Yates as administratrix of the estate of Henry Yates, deceased, against The Chesapeake and Ohio Railway Company to recover damages under the Federal Employers' Liability Act, 45 U.S.C.A. Sec. 51 et seq. for the negligent injury of her husband, Henry Yates, during his employment as a section hand. The alleged injury occurred on the morning of May 23, 1945, and the employee worked only a few minutes thereafter. That evening he was taken to a hospital and was operated upon with death resulting a week later on May 30, 1945. The operation disclosed a torsion or thrombosis of the mesentery with a resulting gangrenous involvement of about five feet of the small intestines.

This suit was filed three years after the alleged injury, and at the first trial plaintiff obtained a verdict for $25,000 which the court set aside as excessive. The second trial resulted in a verdict for $7,000. The principal ground urged for reversal of the judgment entered upon that verdict is the failure of the court to direct a verdict for the defendant, the Railway Company, because no negligence was established nor causation proved.

The petition alleges that the deceased, Henry Yates, was a member of a section crew engaged in lifting a switch point from a railroad car. The allegation is that 'the other members of said section crew working with the said Henry Yates negligently and carelessly let go of said switch point and upon their letting go of said switch point, the switch point turned over and the entire weight thereof was thrown onto and against the said Henry Yates, hitting him in the stomach and with such force * * *' (Emphasis ours) that the injury resulted. The switch point is a rail thirty feet long and weighing about 1,300 pounds. It is tapered to a point at one end, the tapering extending back about fifteen feet. There are 'cups' or 'bridle bars' jutting out a few inches from the sides of the rail, and it is one of these which it is asserted struck the employee in the abdomen.

The evidence revealed that there were seventeen or eighteen men in the railroad car, which was described as a gondola type, and it was their collective intention to lift the switch point over the side of the car and let it fall to the ground. It was admitted that there was enough men assigned to the job to accomplish it. In testifying for the plaintiff one of the employees who was standing next to Henry Yates stated: 'We got the switch point up and was getting ready to throw it over the side of the car and it turned back up the way it was when it was laying in the car, and when it turned that throwed the bridle bar in next to us.' This witness testified that he had hold of the bar when it turned, that he saw it hit Henry Yates, but when asked, 'Did you do anything there to cause it to turn?' he answered: 'No, sir, I didn't, and I never saw anybody do anything. It gradually turned up there * * *. Yes, sir, it was turned down like this (demonstrating to the jury) and it gradually turned back up like this (demonstrating to the jury).' (Emphasis ours.) This witness stated that the piece which struck Henry Yates in the stomach was about two or three inches long, and that all of the men had hold of the switch point, including Henry Yates, and that 'there wasn't a man that turned loose of it until it was throwed over the side of the car.' A second witness essentially confirmed this testimony, and a third witness testified that he felt the switch point turn in his hand, that he didn't see it strike Henry Yates, that he...