Chesapeake & O. Ry. Co. v. Cooper

• Decision Date: 27 January 1916
• Citation: 168 Ky. 137,181 S.W. 933
• Parties: CHESAPEAKE & O. RY. CO. v. COOPER. [a1]
• Court: Kentucky Court of Appeals

181 S.W. 933

168 Ky. 137

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

Court of Appeals of Kentucky.

January 27, 1916

Appeal from Circuit Court, Greenup County.

Action by F. H. Cooper against the Chesapeake & Ohio Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Proctor K. Malin, of Ashland, and Worthington, Cochran & Browning, of Maysville, for appellant.

Allen D. Cole, of Maysville, W. T. Cole, of Greenup, and D. E Ernst, of Russell, for appellee.

CARROLL J.

In a suit under the federal Employers' Liability Act, to recover damages for personal injuries sustained, the appellee, Cooper, had a judgment against the appellant company for $8,000. A reversal is asked on the ground that there was no evidence offered in behalf of appellee to sustain the averments of the pleading, stating the acts of negligence on which he went to trial, and therefore the motion for a peremptory instruction should have been sustained. Another ground relied on is error in the instruction on contributory negligence. In the petition the averment was that the plaintiff was injured--

"by the negligent manner in which the defendant's employés having then control of the engines, cars, and signals at said point conducted themselves in the management of said cars engines, and signals, and was also caused by the negligence of defendant's officers, servants, and employés, and was also caused by defects in defendant's ways, works machinery, appliances, plant, cars, engines, tracks, roadbed and signals at said place, and by the defendant's neglect in failing to formulate, promulgate, and enforce proper rules and regulations for the safety of this plaintiff and his coemployés, in that defendant conducted its work by unsafe and dangerous methods, and did have an improper signal system, and conducted its works by insufficient signals, material, and men."

In an amended petition filed before the answer, the averment was that the appellee--

"was directed by defendant, its agents and servants, to go upon a loaded freight car and ride thereon in charge thereof over what is known in defendant's said switch yards as the 'hump'; that while he was so upon said loaded freight car the platform thereof gave way and fell down, whereby he was violently thrown to the ground, and whereby the contents of said car fell upon him; * * * that the defendant, its agents and servants, carelessly and negligently failed to furnish him a reasonably safe place wherein to work and reasonably safe appliances with which to work; * * * that the said car which he was directed to ride, and was riding, in the discharge of his duties was defective, insecure, and dangerous for the purpose of carrying its said load of freight and plaintiff therein; and that said car was carelessly and negligently overloaded by defendant, its agents and servants; that defendant, its agents and servants, carelessly and negligently failed to inspect said car and its mechanism and appliances and to keep same in reasonably safe condition for use, and also carelessly and negligently failed to warn or instruct plaintiff as to the dangerous and defective condition of said car and its mechanism and appliances, and to keep same in reasonably safe condition for use, and also carelessly and negligently failed to warn or instruct plaintiff as to the dangerous and defective condition of said car and its mechanism. * * *"

In a second amended petition it was set out that:

"For the purpose of making his petition more specific, the plaintiff states that, on the occasion of his said injury, the defendant, its agents and servants, carelessly and negligently cut loose a freight car, and likewise suffered and permitted the same to run down the hump or incline shortly following the said car on which plaintiff was riding, and without having any one thereon to control said car, when they knew, or by the exercise of ordinary care could have known, of plaintiff's peril in time to have prevented same, whereby it struck the car on which plaintiff was riding with great force and violence, by reason whereof plaintiff was precipitated through the bottom of said car, as aforesaid, whereby the flanges and other parts of said car ran through his left leg, as aforesaid, to his great damage, as stated in the petition."

To the petition an answer was filed, traversing generally the averments, and in a separate paragraph the contributory negligence of the plaintiff was relied on to defeat a recovery. After this an answer was filed, traversing generally the averments of the two amended petitions and pleading that plaintiff assumed the risk of the accident that happened.

There is really no material issue made in the evidence. It shows stating it briefly, that the appellee was a switchman in the Russell yards of the company; that in this yard there was what is commonly known among railroad men as a "hump track." This "hump track" is a track that it raised in the center, and from this raised part the track on each side runs down and connects with the various yard tracks. The custom was when a train came into the yard with cars to be placed in other trains, to back up the incline and on the top of the hump, and the cars, which were then cut off, ran down the other side of the hump, one at a time, and thence, of their own momentum, ran into the various switches leading off from the hump track. It was also the custom in this yard for a switchman to be upon each car in order to control its movements and to stop it when it had reached the desired point upon any switch; but, whenever two or more cars following each other were to be placed on the same switch track, one switchman on the front car controlled the movements of the following cars. Immediately prior to the accident appellee started over the hump on a loaded coal car that had doors in the bottom through which the coal was emptied. Another car was cut off behind him at a distance of probably 200 feet, and was allowed to coast down the hump following the car upon which appellee was riding. Both cars were to be placed on the same switch track, and appellee was therefore to control the movements of both. As the front car neared the foot of the hump, its speed was slowed down to...