Chesapeake & O. Ry. Co. v. Harmon's Adm'r

• Decision Date: 15 December 1916
• Citation: 189 S.W. 1135,173 Ky. 1
• Parties: CHESAPEAKE & O. RY. CO. v. HARMON'S ADM'R.
• Court: Kentucky Court of Appeals

189 S.W. 1135

173 Ky. 1

CHESAPEAKE & O. RY. CO. v. HARMON'S ADM'R.

Court of Appeals of Kentucky.

December 15, 1916

Appeal from Circuit Court, Floyd County.

Action by Mack Harmon's administrator against the Chesapeake &amp Ohio Railway Company. Judgment for plaintiff. From the overruling of its motion to set aside the verdict and judgment, and for new trial, defendant appeals. Reversed and remanded.

Harkins & Harkins, of Prestonsburg, Worthington, Cochran & Browning of Maysville, and F. T. D. Wallace, of Ashland, for appellant.

May &amp May, of Prestonsburg, for appellee.

HURT J.

This action was instituted, under the federal Employers' Liability Act, by the administrator of the estate of Mack Harmon, deceased, against the Chesapeake & Ohio Railway Company, to recover the damages suffered by the estate of Harmon on account of his death, which it was alleged was caused by the negligence of the employés of the appellant railroad company. At the time of his death the decedent was riding in the caboose of a freight train of the appellant which was called train No. 81, and consisted of 48 cars, and was proceeding from Shelby, Ky. to Russell, over appellant's track. Just as this train was passing over Burnaugh's Hill, another freight train of the appellant, known as train No. 83, which was proceeding in the same direction, overtook and collided with the rear of train No. 81, crushed into pieces the caboose, and instantly killed the decedent. The action for damages was based upon the allegations that the appellant was engaged in interstate commerce, and that decedent was an employé of the appellant, and also engaged in appellant's business of interstate commerce at the time of his death, and that the proximate cause of his death was the negligence of appellant's servants, in negligently permitting and causing the collision of the trains. The appellant, by its answer, denied that it was engaged in interstate commerce at the time and place of the injury to decedent, and further denied that decedent was an employé of it, or was engaged in assisting it in interstate commerce, and that his death arose from a risk which he assumed, and further that he was contributorily negligent. The affirmative averments of the answer were denied by a reply. The trial in the Floyd circuit court resulted in a verdict of the jury and a judgment of the court in favor of the appellee. The appellant filed grounds for a new trial, and entered a motion to set aside the verdict of the jury and judgment of the court; but its motion was overruled, and hence this appeal.

It seems to be conceded that each of the trains, and the crews in charge of them, were, at the time of the collision, engaged in interstate commerce, and that the collision was caused by the negligence of one or both of the crews of the trains; but it is seriously insisted, for the appellant, that the decedent, at the time of his death, was not an employé of it, and was not engaged in interstate commerce, and that, if he was an employé, he was not, at the time of his death, engaged in any duty which was within the scope of his employment; that it owed him no duty at the time and place of his death, and hence the court should have sustained its motion, made at the conclusion of all of the evidence, to direct a verdict in its favor.

The act of Congress, under which the action was instituted, deals only with the liability of a railroad engaged in interstate commerce for injuries sustained by its employés while also engaged in such commerce. It has no application to an employé who incurs an injury while not engaged in interstate commerce, or an injury incurred by a person who is not an employé of a railroad company at the time. The admitted facts, and such as are proven by the uncontradicted evidence, upon which it must be determined, as a matter of law, whether the decedent was an employé of appellant within the meaning of the federal Employers' Liability Act, are substantially as follows:

The decedent resided at Prestonsburg, and in December, 1913, was employed by appellant, as an engine watchman. After continuing in that service for a short time at Prestonsburg, he had employment of the same kind for some time, and up to about the 28th day of May, 1914, upon the Elkhorn & Beaver Valley Railroad. There is a disagreement between the parties as to whether his employment upon the latter road was really a continuance of the employment by appellant, or whether the Elkhorn & Beaver Valley Railroad was an independent road, and the employment by it was as it was pretended to be; but whether it was the one or the other is not material, since, on account of his services not being further needed, his employment as engine watchman came to an end on the 28th day of May, 1914, and he ceased to be employed in any way by either of the railroads. In the latter part of May he approached the trainmaster and road foreman of engines of appellant, with a request for permission to go upon the trains of appellant and learn the duties of a fireman of locomotives, and to quality himself for services of that kind, so that in the future, if his services were needed, he could be able to secure a place of that kind. He informed this official that he had been engaged for some time theretofore as an engine watchman, under the directions of one Mr. Allen, who had some kind of connection with the Elkhorn & Beaver Valley Railroad, but that he had lost that position on account of his services being no longer needed. He was then informed that it would be necessary for him to secure a letter of recommendation from Allen, which he said he felt he would be able to do. The trainmaster and road foreman of engines, according to his statement, conveyed a direction to the general foreman of the motor power department of appellant, at Russell, to give decedent a "permit" to learn the duties of a fireman upon the Big Sandy division of appellant's road. The decedent secured the requested letter from Allen on the 28th day of May; but it does not appear that he secured the "permit" from Butler, the general foreman of the motor power department of appellant, at Russell, until the 4th day of June, which authorized him to ride upon the locomotive engines of appellant with the engineers and firemen and learn the duties of a fireman. There seems to be something which is unexplained about the "permit" which the decedent had, as the trainmaster seems to be under the impression that Butler gave the decedent a "permit" about the time decedent first approached the trainmaster on the subject, as he says that thereafter the decedent approached him again on the 31st day of May, according to his recollection, and informed him that he had secured the indorsement of two engineers upon his "permit," but had lost it or mislaid it, and the trainmaster then informed decedent that it would be necessary for him to preserve his "permit" and to secure the indorsement of three engineers upon it and return it to him before he would be authorized to consider an application for a position from him, and that Butler was directed to give decedent a "permit" in lieu of the former one; but Butler is emphatic in the declaration that he gave decedent but one "permit," which was the one exhibited on the trial and bears the date of June 4th.

The widow of decedent gave testimony to the effect that on the night of the 28th of May he was awakened after he had retired for the night by some one, whom she said was a brakeman, who requested him to come at once and assist them, as they had a "double header" and wanted to reach some point which she did not remember, before the arrival of some other train, and that decedent immediately arose and went toward a train, which was then at Prestonsburg, and did not return to his home until the following Tuesday morning, about 4 o'clock, and that he was covered with coal dirt and appeared to have been working; that he remained at home on Tuesday, and left again upon the engine of a train, and did not return until Thursday evening, when he remained but a short time and went away. As to what decedent was doing between the Thursday night, when he was called from his home, and the following Thursday evening, when he returned on a train, is not material, as he, on Thursday, June 4th, on the evening of which he returned to his home at Prestonsburg upon the train, had secured the "permit," which is exhibited, in the evidence, and there is no pretense that he was on the trains under any other kind of arrangement than the one indicated, to learn the duties of a fireman. On Thursday afternoon, when train No. 81, which was proceeding from Shelby to Russell, arrived at Woods, which is a station between Prestonsburg and Shelby, an engine, with a caboose attached, arrived from in the direction of Prestonsburg. Decedent was riding in the engine cab with the engineer. When train No. 81 had arrived within a few miles of Prestonsburg, the decedent came over the train, from towards its rear, to the engine, and got upon the engine, where he exhibited the "permit," which Butler had given him that day, to the engineer, and thereupon the engineer directed the fireman to stand aside and to permit the decedent to act as fireman, which...