Chesapeake & O. Ry. Co. v. Shaw

• Decision Date: 17 February 1916
• Citation: 168 Ky. 537,182 S.W. 653
• Parties: CHESAPEAKE & O. RY. CO. v. SHAW. [a1]
• Court: Kentucky Court of Appeals

182 S.W. 653

168 Ky. 537

CHESAPEAKE & O. RY. CO. v. SHAW. ^[a1]

Court of Appeals of Kentucky.

February 17, 1916

Appeal from Circuit Court, Mason County.

Action by John B. Shaw against the Chesapeake & Ohio Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Worthington Cochran & Browning, of Maysville, for appellant.

Allan D. Cole, of Maysville, for appellee.

MILLER C.J.

This is an appeal from a judgment awarding the appellee, John B Shaw, $10,000 damages for injuries sustained as the result of having been run over by one of appellant's trains in its yards at Maysville.

At the time of the accident Shaw was in the service of the appellant as baggagemaster on one of its passenger trains running between Cincinnati, Ohio, and Maysville, Ky. and known as the "Maysville Accommodation." This train left Cincinnati about 6 o'clock on Saturday evening, June 4 1913 and according to its schedule time it should have arrived at Maysville about 8 o'clock. It was, however, about five minutes late on this occasion. According to its custom, after stopping at the principal depot at Maysville and discharging such of its passengers as desired to alight there, the train would proceed about half a mile east, to what is known as the Market Street depot, where the remaining passengers would be discharged, and the train would then be backed to the yards immediately west of the principal depot, where the engine would be placed on a turntable and turned around preparatory to the trip back to Cincinnati on the next morning--the entire train remaining in the yards during the night.

In making this backward movement from the Market Street station, it was customary for Shaw to act as rear brakeman while the train was backed from Market street to the yards, and while it was doing the necessary switching in the yards. On the day of the accident, before the train left Cincinnati, orders were given its crew that after reaching Maysville the train was to take on another coach and then proceed eastwardly as an "extra," No. 73, to Russell, Ky. and return to Maysville the next morning, which was Sunday. The object of this extra trip was to bring down from Portsmouth to Maysville the Portsmouth baseball team and an excursion crowd, to be picked up at South Portsmouth, Ky. a station a few miles west of Russell, and between Russell and Maysville. On the night of the accident, when the "Maysville Accommodation" reached the Maysville depot, a part of the passengers and all of the baggage were unloaded, and the train then proceeded east to Market street, where the remaining passengers were unloaded. When this had been done, it was about 8 o'clock in the evening, and about five minutes later than the schedule time. The appellant's fast east-bound passenger train No. 6 was due at Maysville about 8 o'clock, and in order to permit this fast train to pass the "Maysville Accommodation" train was backed down to the yards; the appellee Shaw taking his position on the rear of the train, as usual.

The Maysville yard contains a "lead" track, which connects with the east-bound main track at a point west of the depot, and runs in a southwestwardly direction to a turntable, a distance of about 500 feet, and four switch tracks, which branch off westwardly from the "lead" track and run parallel with each other. Beginning with the one nearest the east-bound main track, these switch tracks are known as switch tracks No. 1, No. 2, No. 3, and No. 4, respectively. There is a switch stand located between the two main tracks, about opposite the point where the "lead" track begins. This switch stand is used to operate the switch connecting the "lead" track with the east-bound main track. There are also switches connecting the four switch tracks with the "lead" track; each of these switches being operated by switch stands located at the point of intersection between the switch track and the "lead" track, and known as switch stands Nos. 1, 2, 3, and 4, respectively. These switch stands are all located on the south side of the "lead" track, in order that they may be seen by the engineer, for the purpose of receiving signals. There is also a "derail" switch, about halfway between the turntable and switch No. 4. This "derail" switch is used to operate both the "derail" and the connection between the "lead" track and the turntable.

After the train had backed from the East Market station to the depot, it moved backward on the "lead" track and onto switch track No. 1, for the purpose of letting the fast train pass, to get another coach that was on that track, and also to clear the "lead" track, so as to enable the dining car to be taken off the fast train and placed on track No. 2, as was customary. Shaw was standing on the rear of the train, controlling its backward movement by a bell cord connected with the engine. However, after the train had started in on switch track No. 1, Shaw ascertained there would not be sufficient room for his train upon that track, because of the presence of other cars there. Accordingly he stopped the train, jumped off the car, and gave Jones, the engineer, a signal to pull east out of switch No. 1, which was done. About the same time the conductor jumped off the train. Shaw then threw the switch connecting the "lead" track with switch track No. 1, so the train could pass on down the "lead" track; it being his evident purpose to run the train back on the "lead" track until the fast train had passed. After throwing switch No. 1, Shaw signaled the engineer to back the train down the "lead" track; Shaw walking or running ahead, evidently for the purpose of throwing switches Nos. 2, 3, and 4, and the "derail" switch, so as to keep the train on the "lead" track until it had cleared track No. 2. In obedience to the signal given by Shaw, the train began backing slowly, at the rate of about three miles an hour; Shaw running ahead of it, throwing switches 2, 3, and 4 as he passed them.

Up to this point there is no material conflict in the testimony of the several witnesses; but as to what happened after switch No. 4 was thrown the testimony is conflicting. According to Shaw's version, after throwing switch No. 4, and when he started to go directly across to the south side of the "lead" track for the purpose of reaching the "derail" switch, his feet were caught in a hole or opening between one of the ties and the rod which runs across the track and below the rails, connecting switch No. 4 with the switch stand, and while held in that position he was struck and knocked down by the train, which cut off his right leg and the larger part of his left foot.

Shaw testified that the conductor told him to "hurry up" and throw the switches on the "lead" track without waiting for the signals to continue backing, which usually were given after each switch had been thrown, and that the engineer continued to back the train without waiting for the usual signals. The conductor contradicts Shaw in this respect; but the engineer testified that he continued to back the train until he lost sight of Shaw's lantern, and that he then stopped the train and told the conductor something must be wrong at Shaw's end of the train.

According to the company's version of the accident, Shaw was struck and run over at a point about 37 feet west of switch No. 4, while either walking or running beside the track, and trying to cross over the track, that he was not struck at switch No. 4, and that his injury was not and could not have been the result of his foot catching between the switch rod and the tie, as he claimed.

The action was brought under the federal Employers' Liability Act. The petition as amended alleged, in substance, that appellant was negligent (1) in operating its train that ran over Shaw; (2) in failing to have lights in the yard; and (3) that switch No. 4 and the tracks in that immediate vicinity were in such a defective and dangerous condition that Shaw was not furnished a reasonably safe place to work. The answer contained a traverse of the allegations of the petition, and affirmatively relied upon the defenses of contributory negligence and assumed risk upon the part of Shaw.

Upon the trial the circuit court held that there was no negligence shown in the operation of the train--the proof being that the brakeman and conductor were elsewhere at the time of the accident, in the performance of the duties required of them, that the train was being operated under signals given by Shaw, and that the engineer stopped the train the moment he lost sight of Shaw's signal lantern. The circuit court also refused to submit to the jury the question as to whether the appellant was negligent in failing to have lights in its yards, presumably upon the theory that this condition had existed for several months, and was fully known to appellee, who assumed that risk.

We are led to assume that the reasons above given influenced the court, as therein indicated, since the only issue of negligence upon the part of the company which was submitted to the jury was whether Shaw was injured at switch No. 4, and, if so, whether the company negligently failed to keep the switch rod connecting the switch stand of switch No. 4 with the "lead" track, and the ties and ground between said switch stand and the south rail of the "lead" track, in a reasonably safe condition.

1. The action was brought under the federal Employers' Liability Act; the petition charging that both the appellant and the appellee were engaged in interstate commerce. Appellant filed its petition for a removal of the case from the state court into the United States District Court, charging, after setting out the requisite diversity of citizenship, that the allegations as to the interstate nature of appell...