Chesapeake & O. Ry. Co. v. Music

• Decision Date: 26 April 1932
• Citation: 243 Ky. 491,49 S.W.2d 311
• Parties: CHESAPEAKE & O. RY. CO. v. MUSIC.
• Court: Kentucky Court of Appeals

49 S.W.2d 311

243 Ky. 491

CHESAPEAKE & O. RY. CO. v. MUSIC.

Court of Appeals of Kentucky

April 26, 1932

Appeal from Circuit Court, Johnson County.

Action by Heber Music against the Chesapeake & Ohio Railway Company. From a judgment in favor of plaintiff, defendant appeals.

Reversed.

Browning & Davis, of Ashland, and Kirk, Kirk & Wells, of Paintsville for appellant.

Blair &amp Harrington, of Paintsville, for appellee.

STANLEY C.

The appellee, Heber Music, was ruptured while unloading cross-ties for his employer, the appellant, and has recovered judgment for $675 against it for those injuries.

The ties had been shipped in a gondola car to the point where the accident occurred. The method used in unloading them was for two men to lift one end of the tie and place it on the edge of the car, and the appellee would raise the other end and lift it around or shove it over the side, letting it fall to the ground. The ties had notches or channels cut across them about 18 inches from each end for the purpose of holding steel plates carrying the rail. Those channels were from one-eighth to one-half inch in depth. While Music was thus working, the notch of one of the ties caught on the side of the car and suddenly stopped its movement, causing the appellee's body to violently strike the end of the cross-tie, resulting in a rupture. The plaintiff was an experienced laborer, and had been working as a section hand for about three months. However, he testified that he had had no previous experience in unloading cross-ties. It is shown that this was a regular customary way of handling them.

The negligence of the company is charged to have been that fellow servants placed the face side of the tie down instead of up knowing that the notch or channel was in it and liable to catch on the car, while the plaintiff did not know and could not see that it was so placed. Also, that the company failed to supply sufficient help in the work, and that the plaintiff was obeying the orders of his superior. It was also pleaded that the plaintiff and the defendant were at the time engaged in commerce, which pleading was for the purpose of bringing the case within the State Employers' Liability Act (section 820b-1 et seq. Kentucky Statutes) which abolished in part the fellow-servant doctrine and the defenses of contributory negligence and assumed risk where the employee of a railroad engaged in commerce is injured or killed. McGaughey v. Hines, Director General of Railroads, 193 Ky. 312, 235 S.W. 742. Those defenses were set up. It is not necessary to decide whether there was any negligence upon the part of the company through its agents and servants, or whether the appellee was engaged in commerce within the contemplation of the Employers' Liability Act, for there was no violation by the company of any statute enacted for the safety of employees, and it is only when there was such a violation, and it contributed to the injury or death of the employee, that the defense of assumed risk is denied. Section 820b-3, Kentucky Statutes. Consequently the defense of the assumed risk was available. Pruitt v. N. & W. Ry Co., 188 Ky. 204, 221 S.W. 552. In the McGaughey Case supra, a section hand was injured while unloading cross-ties from a push car, when his clothing caught in a sun crack or splinter and he was caused to fall. Elaborating upon the...