Chesapeake & O. Ry. Co. v. Hudson
| Decision Date | 02 April 1916 |
| Citation | 184 S.W. 884,169 Ky. 580 |
| Parties | CHESAPEAKE & O. RY. CO. v. HUDSON. |
| Court | Kentucky Court of Appeals |
Appeal from Circuit Court, Lewis County.
Action by B. G. Hudson against the Chesapeake & Ohio Railway Company. From a judgment for plaintiff, defendant appeals. Judgment affirmed.
Worthington Cochran & Browning, of Maysville, for appellant.
A. R Johnson, of Ironton, Ohio, Proctor K. Malin, of Ashland, and Johnson & Jones, of Ironton, Ohio, for appellee.
This appeal is prosecuted from a judgment of the Lewis circuit court, entered upon a verdict awarding the appellee, Benjamin G. Hudson, $9,667 damages for the loss of both of his legs caused, as alleged, by the negligence of the servants of the appellant, Chesapeake & Ohio Railway Company, in charge of and operating an engine, tender, and certain cars of one of its trains. Hudson was thrown from one of the cars, a wheel of which passed over him and so crushed and mangled both of his legs as to necessitate the amputation of one of them above the knee and the other just below the knee. Hudson being an infant, the action was instituted in his name and by John C. Queen as his next friend.
The accident occurred at a place in Lewis county known as "Fire Brick," where the Portsmouth Granite Fire Brick Company owns and operates a fire brick manufactory, or plant. Fire Brick is situated a half mile from the main line of appellant's railway and connected therewith by a spur or switch track. Three switches of this spur, known as the "coal track," "tipple track," and "loading track," enter the plant of the Portsmouth Granite Fire Brick Company. A local freight train which the appellant ran daily from Maysville to Russell in this state, upon reaching Fire Brick station on its main line, would take such cars as it had destined for the fire brick plant on the spur track out to the plant, and in returning to Fire Brick station would remove from the plant cars loaded with brick, consigned by the fire brick company to its customers. The moving and placing of cars on the various switches at the fire brick plant was also done by the engine of the local freight on these daily trips thereto. It appears that the appellee, Hudson, following his graduation from the Portsmouth, Ohio, high school at 18 years of age, entered the employment of the Portsmouth Granite Fire Brick Company in June, 1910, and continued therein down to the date of the accident, November 11, 1910; and that among other things required of him it was his duty, as an employé of the brick company, to superintend and direct the moving and placing by appellant's engine of all cars on the various tracks or switches of that company. Appellant's local freight train was due at Fire Brick about 1 or 2 o'clock p. m. each day, but on the day of the accident it was late and did not get there until 4:30 or 5 o'clock p. m., about three hours behind its customary time. Upon its arrival, appellee handed to John Glenn, the conductor, a list showing the cars that were to be moved about the plant and taken therefrom. At that time the engine had in front of it a car of merchandise for the fire brick company and an empty box car, the engine being headed toward the plant. As it proceeded to the point where the car of merchandise was to be left, there were two switches to be thrown, one switch leading to the left side of the dryhouse of the plant, called the "coal track," the other to the right side of the dryhouse, called the "loading track," and the second switch dividing the loading track into what is known as the "tipple track" and the "loading track." The engine stopped just before it got to the dividing point of the loading track. Standing on the tipple track, and so near the switch point that the engine and cars would not clear it on going in on the loading track, was a large steel gondola car loaded with brick, and as, because of its situation, this car would not permit the engine and other cars to clear it in going upon the loading track, it was necessary for them to first push the brick car on up the tipple track out of the way. The tracks were all upgrade going into the plant.
The engine with the two cars in front of it came against the car loaded with brick and tried to push it up the tipple track, but failed to do so, because of the brakes being so tightly set upon it. At that time Hudson was standing on the upper side of the tipple track on the loading wall next to the dryhouse. When the engine and cars pushed against the car loaded with brick, the wheels of the engine began to revolve rapidly. Observing this, appellee jumped down off of the loading wall and crossed at the back of the car loaded with brick to the opposite side of the tipple track, where he encountered Glenn, the conductor, who was standing near the north end of the brick car. Upon this meeting the conductor, appellee told him the brakes were set on the brick car. Thereupon, according to his testimony, the conductor told him to get up and let off the brakes, pursuant to which order he climbed up the ladder of the car and onto the brake platform, all the while in view of the conductor. Upon trying to release the brake by hand, he found that he could not do so. He then kicked the "dog" of the brake without succeeding in releasing it. He next reached into the car, picked up a fire brick, and with it pounded the dog of the brake loose, and when the brake was released the car lurched forward, which caused appellee to be thrown off to the track in front of it, resulting in the injuries already mentioned. The sudden lurch of the car, which moved it forward six or eight feet, was admittedly caused by the pushing against it of the two cars and engine in the rear, at the time of the release of the brake.
It further appears from appellee's testimony, and is uncontradicted by any other witness, that as he climbed on the car and attempted to release the brake he could not see the engine or know whether it was then pushing against the car; also, that the conductor was then standing on the engineer's side of the train, in plain view of both appellee and the engineer, and was engaged in giving signals to the engineer with reference to the movements of the engine. It is the contention of appellee that his injuries were caused by the fact that the engine of the train was, by direction of the conductor, being pushed against the brick car while he was releasing the brake; that the conductor, knowing the danger in which such pushing of the brick car by the engine placed appellee while releasing the brake, was guilty of negligence in failing to signal the engineer to stop the pushing against the car by the engine, which signaling he might have done by a simple movement of the hand and thereby caused the stopping of the pushing in a second's time.
The record shows no contrariety of evidence as to the fact that the shoving of an engine under a full head of steam against a car locked by its brake will inevitably have the effect to suddenly move and jerk it forward when the brake is released. This is fully explained in the testimony of A. J. Hannon, an experienced railroad man, as follows:
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