Chesapeake & O. Ry. Co. v. Rucker
| Decision Date | 25 November 1932 |
| Citation | 246 Ky. 161 |
| Parties | Chesapeake & O. Ry. Co. v. Rucker. |
| Court | United States State Supreme Court — District of Kentucky |
3. Master and Servant. — Plaintiff failing to make case under Federal Employers' Liability Act must amend petition declaring thereon to conform to proof, to warrant submission of case to jury under common law (Federal Employers' Liability Act [45 USCA secs. 51-59]).
4. Evidence. — Both state and federal courts take judicial notice of federal statutes.
Appeal from Carter Circuit Court.
HUNT & BUSH, B.L. KESSINGER, and JOHN M. THEOBALD for appellant.
WAUGH & HOWERTON for appellee.
Reversing.
On the trial of this action in the court below, the appellee, Bonar Rucker, an infant, suing by his next friend, Cecil Rucker, recovered of the appellant the Chesapeake & Ohio Railway Company, a verdict and judgment for $5,000 for damages resulting from injuries to his person, alleged caused by the gross negligence of appellant and its servants superior in authority to him.
Appellant was refused a new trial and, complaining of such ruling and judgment, has prosecuted this appeal, assigning for grounds of reversal that:
1. Rucker was not engaged in interstate commerce at the time of the accident and was not entitled to maintain an action under the Federal Employers' Liability Act (45 UCSA secs. 51-59).
2. The circuit court admitted incompetent evidence over the objections of appellant, which was prejudicial, and for which a new trial should be granted.
3. The damages awarded are excessive.
The action was brought under the Federal Employers' Liability Act.
The appellee, hereinafter referred to as plaintiff, alleged in his petition that at the time and place and in the performance of his labor when injured both plaintiff and defendant were engaged in interstate commerce, in that he, together with his fellow servants of the road section crew, was engaged in handling stone upon its car and interstate track for the purpose of removing the stone therefrom, to facilitate its interstate transportation of passengers and freight.
As it is conceded by appellee that the facts are fairly stated in appellant's brief, so far as it goes, we shall adopt substantially the statement of facts as it there appears.
Bona Rucker when injured was working as a member of a section crew under the direction of their foreman, D.W. Caudill. On October 4, 1929, the foreman and his crew were engaged in unloading a car of crushed stone at Hitchins.
Shortly before the accident the Chesapeake & Ohio had moved a toolhouse from a point several yards away to a new location. This was done because, at the old location, the toolhouse obstructed the view at two road crossings over its tracks. The toolhouse had been erected at its new location about ten or twelve feet from the main line track. A wooden platform had been laid down connecting this toolhouse with the main tracks. The toolhouse, before its removal, had been used for the storage of tools and a motorcar, or hand car, used by the section men in their work, and was intended for the same use at the new location. The wooden platform was used by the employees in moving the equipment from the track to the toolhouse and from the toolhouse to the track.
To add to the sightliness and to provide a dry yard around the toolhouse, the Chesapeake & Ohio proposed to cover the ground with crushed stone, and the carload of stone involved in this accident was designed for that purpose.
The car containing the stone was a hopper car of two compartments, there being a door in the bottom of each compartment controlled by pins or levers. The method of operation was to "spot" the car at the desired point, and then release the doors and allow the stone to run out by gravity. This operation did not always clear the car of the stone and it was necessary for the crew to go to the top of the car and with shovels push down such part of the stone as did not run out of its own weight.
The car in question was "spotted" or located on the main track at or near the toolhouse, and the section crew was called to unload the car and spread the stone.
The crew consisted of the foreman and seven men, including Rucker. It was intended to unload the western compartment first. The foreman instructed the crew to go to the top of the car to help run down the stone. The foreman and his assistant, Leslie Caudill, took positions on opposite sides of the car to release the pins or levers which held the floor of the compartment in position. Several men went up the west end. Two or three, including Rucker, went to the east end of the car and climbed to the top. Rucker started across to the west end, and when he reached a point over the western compartment, the foreman and his assistant, not knowing of his position, released the door, permitting the stone to run out. Rucker was caught in the stone and carried through the bottom of the car. His position and peril were discovered and he was promptly rescued by his fellow workers. He was smothered and made unconscious. His associates ministered to his needs and he shortly regained consciousness. He was placed on the platform between the toolhouse and the track, where he stayed for some time, and was then carried home.
Rucker claimed that his right eye was so injured by this accident as to cause a complete loss of vision in that eye. While he was somewhat bruised and scratched about his body, no serious complaint is made of any other injury than that to his eye.
It is shown by the evidence and admitted that Rucker's right eye was crossed and had been so since infancy. The "convergent squint" of his right eye was such as to destroy about 40 per cent. of its vision and it is the loss of its remaining vision of which he complains.
We will now address our attention to the consideration and disposition of appellant's reasons and grounds urged upon us for a reversal of the judgment, the first of which is that Rucker was not engaged in interstate commerce at the time of the accident, and was therefore not entitled to maintain his action under the Federal Employers' Liability Act (45 USCA secs. 51-59), upon which he predicated it.
The facts, as disclosed by the record stated supra, show that Bona Rucker was, at the time and upon the occasion of receiving his alleged bodily injuries from which resulted, it is alleged, the loss of the sight of his right eye, employed as a member of appellant's road section crew at Hitchins, Ky., whose usual and customary employment as such was that of helping to maintain and keep in proper condition the roadbed and tracks of defendant's railway, then engaged in the interstate transportation of passengers and freight for hire.
It is also shown that, upon the occasion in evidence, this section crew was by the foreman told to hurry with the unloading of this car of crushed stone and its removal from the track so as to clear it before the expected arrival of its interstate passenger train, No. 23, which was scheduled to arrive at Hitchins at something over an hour thereafter and then some 30 or 40 miles distant.
Also it will be noted that plaintiff when injured was on top of the car preparatory to assisting in the unloading of this crushed stone from the car onto the track, and not in removing it from the track to the end of facilitating the clear and safe passage of this early expected interstate train, No. 23.
Plaintiff contends that by reason of the fact of his then employment with defendant being that of a section hand, whose usual work was to help keep in repair and proper maintenance appellant's interstate railway tracks, for the purpose of facilitating its interstate transportation thereover, and further that as he was upon the instant occasion of receiving his injury engaged in the labor of unloading the track obstructing car of stone from the track for the purpose of providing a clear and safe passage thereover for appellant's approaching passenger train, No. 23, he was therefore at such time engaged in an employment of interstate commerce and his claim for compensation, for injuries received while so engaged, was properly based upon the provisions of the Federal Employers' Liability Act, under which his action was brought.
Appellant contends, however, that the admitted facts in evidence as to the nature of the employment of the plaintiff Rucker, at the time of receiving his injury, conclusively show that he was not then engaged in the labor of interstate transportation or in labor so closely related thereto or connected therewith as to be properly a part thereof, and that therefore, there being no evidence substantially tending to show the plaintiff was engaged in such labor upon the occasion in question, the court erred in refusing appellant's offered peremptory instruction, asked at the conclusion of plaintiff's evidence and again at the conclusion of all the evidence, insisting that the requested peremptory instruction tested the sufficiency both of plaintiff's pleadings and evidence as to whether he had properly instituted his action upon the provisions of the Federal Employers' Liability Act, predicated on his being then engaged in interstate transportation, but which the evidence failed to support.
While it may be conceded that "each case must be determined on its own peculiar facts, and no formula can be found `invariable by circumstances or free from confusion by them in application,'" the question as to what was the character of the...
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