Chesapeake & O. Ry. Co. v. Kelly's Adm'x

• Decision Date: 15 October 1914
• Citation: 160 Ky. 296,169 S.W. 736
• Parties: CHESAPEAKE & O. RY. CO. v. KELLY'S ADM'X.
• Court: Kentucky Court of Appeals

169 S.W. 736

160 Ky. 296

CHESAPEAKE & O. RY. CO. v. KELLY'S ADM'X.

Court of Appeals of Kentucky.

October 15, 1914

Appeal from Circuit Court, Montgomery County.

Action by Matt Kelly's Administratrix against the Chesapeake &amp Ohio Railway Company. Judgment for the plaintiff, and defendant appeals. Affirmed.

Shelby Northcutt & Shelby, of Lexington, and L. Apperson, of Mt Sterling, for appellant.

O'Rear & Williams, of Frankfort, for appellee.

NUNN J.

On the morning of June 28, 1911, one of appellant's east-bound passenger trains was derailed two miles east of Aden in Carter county. There was a curve of about eight degrees at the point where the derailment occurred. The curve bent toward the right, and the left hand or outside rail was therefore the higher. The wheel of the engine truck climbed this left-hand rail. The engine ran upon the ties some 300 feet, and then left the roadbed entirely, going down an embankment. The engineer, Matt Kelly, was caught under it and killed. Kelly had been in the employ of appellant for 20 years continuously, and for most of this time serving as a locomotive engineer. He was 48 years old and left surviving and dependent upon him a wife, age 45, and five infant children. He was earning $192 per month as engineer, and was an intelligent and industrious man, steady, sober, and frugal in his habits. This action was brought under the federal Employers' Liability Act to recover the damages sustained by his widow and children. There have been two trials. On the first, there was a verdict for $18,000, but this was set aside in the lower court. This appeal is from a judgment rendered on a verdict in the second trial for $19,011.

The verdict was as follows:

"We, the jury, find for the plaintiff in the sum of $19,011.00; to be proportioned as follows: Mrs. Addie Kelly $7,040; Carroll Kelly, $1,288; Matt L. Kelly $1,580; Ruth Kelly $2,273; Tom Kelly $4,371; Richard Kelly $2,459. Total $19,011."

The basis of recovery was the alleged negligence of the railway company with reference to the engine and its equipment, and defects and insufficiencies of the roadbed, rails, and ties. The evidence of appellee went to show that this left-hand or outside rail on the curve was defective and dangerous, in that the top or "ball" of it, which was climbed by the engine, was worn, that is, beveled off, beyond the point of safety. By the constand wear of car wheels against it in turning the curve, this outside rail was beveled on the inside to as much as 45 degrees from a vertical, as the testimony of some of the witnesses shows. A section of the rail is before us. The beveled surface is steeper than 45 degrees, perhaps not more than 20 degrees, but it is so worn that the point of the bevel on top of the rail is even with an extended line of the "web" or upright part of the rail. This rail section did not come from the rail where the engine left the track. It was supplied by appellant, and came from some other rail in that curve, but for purposes of this case, we will assume that none of them were worn or beveled any more than this. The engine was No. 143, and had been in constant use since 1892. It was built with a flangeless front driving wheel, or, as referred to by some of the witnesses, a "bald" driver. The pony truck at the front of the engine had four wheels. This truck is known as the rigid center-plate type. Modern engines are equipped with the swinging center plate. The modern swinging center plate, as the name implies, is one which has a lateral motion instead of being fixed, and which, therefore, moves laterally or "gives" to the rail as the engine tracks the curve. The pony truck under this engine was of the rigid solid casting center-plate type. The proof of appellee goes to show that a locomotive and train of cars running on a straight track have a tendency to continue their straight course when reaching a curve in the track, and would do so but for the flanged wheels operating against the outer rail of the curve. The first wheel to meet this resistance of the curve is the front wheel of the pony truck, and it, therefore, receives the first shock. Of course, the sharper the curve and the higher the speed, the greater the burden on both flange and rail. A less rigid truck obviously will conform more easily to the curved track, and a sound, unworn outside rail will, of course, offer more resistance to the flange on any type of truck. With the natural tendency of an engine at high speed to lift or climb the outside rail of a curve, then if that rail is worn, that is, beveled out, it becomes a saucer or bowl-like floor upon which the flange rim rests. Then there is an easy grade for the wheel to mount the rail. The beveled rail need not be worn to the breaking point--it might be perfectly safe on a straight track; it would stand any strain to which it is there subjected--but at a curve it is entirely likely that it acted in the same way that a derailer does to safeguard the main track from a wild car on the siding.

Appellee proves and argues that the more flanges that can be presented against the outer rail, that much less likely will the train be to leave the track, and in this way, it insists, there was further negligence in continuing to use the "bald" driver. It is undisputed that engines with "bald" drivers and rigid trucks are not now being constructed and have not been for many years, and at the time of this accident only three of them were left on this road. But the proof of appellant shows that this change in type of engine--the use of the swinging center plate instead of the rigid pony truck, and the use of a flanged drive wheel instead of the "bald" driver--has come principally as a larger and heavier type of engines began to be employed. Its witnesses admit that the rigid truck and the "bald" driver under the modern heavy engines would be dangerous and unsafe, but swear there is nothing dangerous in their use under a lighter engine, like No. 143. They also swear that the worn condition of the rail above referred to is not dangerous. About a year before this, engine No. 143, went into the ditch near Leon tunnel, and, the proof shows, on a curved track like that shown at this time. Complaint and criticism was then made by employés to appellant's officials in charge of such equipment that the engine was deficient and dangerous for the reasons above named.

Appellant is frank to say that it cannot account for this derailment, and is unable to offer any explanation of it. It contends that it is merely one of such accidents as are constantly occurring in railroad history, notwithstanding the exercise of great care. It may be true that this engine, No. 143, with the rigid truck and "bald" driver, should safely track an eight-degree curve if the outside rail be in good condition, but, when a badly worn and beveled rail concurs with the rigid truck and "bald" driver of this engine, it certainly is not an unwarranted deduction to account for the wreck in that way.

The facts going to support appellee's theory of negligence were testified to by numerous witnesses, among them engineers and others experienced in railroading. There is no material dispute as to the rigid pony truck and the worn rails. Appellant's witnesses, however, do controvert the theory of the accident as resulting from these proven facts. While they, too, are men of railroad experience and responsibility yet the conflict as to cause is none the less one of fact, and unless the instructions are erroneous, the jury's verdict should not be disturbed. But, before coming to a consideration...