Chesapeake & O. Ry. Co. v. McCracken
| Decision Date | 13 June 1933 |
| Citation | 249 Ky. 767,61 S.W.2d 618 |
| Parties | CHESAPEAKE & O. RY. CO. et al. v. McCRACKEN. |
| Court | Kentucky Court of Appeals |
Appeal from Circuit Court, Bracken County.
Action by John T. McCracken against the Chesapeake & Ohio Railway Company and others. Judgment for plaintiff, and defendants appeal.
Affirmed.
Browning & Davis, of Ashland, for appellants.
M Hargett, of Maysville, for appellee.
CREAL Commissioner.
John T McCracken instituted this action against the Chesapeake & Ohio Railway Company seeking to recover damages for personal injuries alleged to have been sustained while employed in the company's yards at Stevens in Campbell county. Trial before a jury resulted in a verdict and judgment for plaintiff in the sum of $1,000, and defendant is prosecuting this appeal.
As grounds for reversal, it is argued in brief by counsel for appellant (1) that the negligence, if any, alleged and proved was that of a fellow servant of appellee, and therefore he was not entitled to recover; (2) that no negligence is shown by the evidence; (3) that instruction No. 1 given by the court is erroneous.
Briefly stated, the evidence in substance shows that there are a number of tracks in appellant's yards at Stevens, among which is one known as track No. 11 adjacent to a house in which supplies are kept. All engines from both east and west bound freight trains coming into the yards are uncoupled from the train and run onto track No. 11 by the engineer, where they are left in front of the supply house.
For some time appellee had been employed by appellant as a supply man, and his duties required him to check the tools, fill and clean the lanterns on the engines, and to procure from the supply house tools to replace any found to have been lost. After the tools were checked and assembled, he would place them in the tool box on the tender and lock the door or lid to the box. When his duties in connection with the engine had been completed, it was the duty of another employee of the company known as a hostler to remove the engine to the ash pit or roundhouse. Live engines were usually moved by their own power, but dead engines were coupled onto and pulled by other engines; however, at times when there were two or more engines, they would be coupled and moved together. Appellee testified, as also did one of the foremen in charge of the roundhouse and yards, that it was the duty of the hostler to await orders or signals from the supply man that the work of checking supplies and tools had been completed before he attempted to move the engine.
On June 25, 1925, appellee had finished checking and assembling the tools on an engine, and had placed them in the box and was attempting to lock the door. The door was sprung or warped, and, in order to get it in place so it could be locked, he placed his back against the cab of the engine and his knee against the door. While in this position the hostler drove another engine against the one upon which he was working, thereby causing the slack between the engine and tender to be taken up and injuring appellee's knee and leg, and causing him to fall from the cab to the ground.
It is argued by counsel for appellant that it was neither alleged nor proved that appellee was employed within interstate or intrastate commerce, and therefore the common-law defense of fellow servant is available. Section 820b-1, Kentucky Statutes, provides: "That every common carrier by railroad while engaged in commerce in this state shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce, or in case of the death of such employee, to his or her personal representative for such injury or death to such employee resulting in whole or in part from the negligence of any of the officers agents, or employees of such carrier, or by reason of any defect or insufficiency, due to its negligence in its cars, engines, appliances, machinery, track, roadbed, docks, boats, wharves or other equipment." There is a federal statute of similar import with...
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