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

• Decision Date: 27 May 1914
• Citation: 159 Ky. 237,167 S.W. 128
• Parties: CHESAPEAKE & O. RY. CO. v. WALKER'S ADM'R.
• Court: Kentucky Court of Appeals

167 S.W. 128

159 Ky. 237

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

Court of Appeals of Kentucky.

May 27, 1914

Appeal from Circuit Court, Carter County.

Action by James Walker's administrator against the Chesapeake &amp Ohio Railway Company. Judgment for the plaintiff, and defendant appeals. Reversed for a new trial.

Shelby Northcutt & Shelby, of Lexington, Wilhoit & Wilhoit, of Grayson, and H. L. Woods, of Olive Hill, for appellant.

H. R Dysard, of Ashland, for appellee.

MILLER J.

This action was brought by James Walker's administrator under the provisions of the act of Congress of April 22, 1908 (35 Stat. 65, c. 149 [U. S. Comp. St. Supp. 1911, p. 1322]) known as the Employers' Liability Act, to recover damages for negligently causing the death of Walker while in the service of the appellant as a brakeman. The trial resulted in a judgment for $12,000, which the jury apportioned equally between the widow and the two infant children of Walker. The company appeals.

Walker was 29 years old, and, prior to September 4, 1912, he had worked, first as a farmer, and later in a fire brick yard at Olive Hill, Ky. On September 4, 1912, he applied to appellant's trainmaster for a position as brakeman. The trainmaster gave him a pass or note addressed to appellant's freight conductors, authorizing them to permit Walker to travel over the Lexington division of the road for the purpose of learning the duties of a brakeman. In about four or five days thereafter Walker returned the pass, signed by a number of appellant's freight conductors, showing that he had gone over the road on their trains; and the trainmaster, having satisfied himself that Walker was qualified to perform the duties of a brakeman, employed him.

Walker went to work about September 8, and was killed on the night of September 26, 1912, less than three weeks after he entered appellant's service. At the time of his death Walker was the front brakeman on a "pickup" freight train running from Ashland to Lexington, Ky. of which James McDonald was conductor, Fred. Fields rear brakeman, G. W. Sanders engineer, and Glenn Dooley fireman. The train was composed of 13 heavily loaded gondola cars and a dead engine in charge of Charles Porter, a machinist.

Walker rode into Olive Hill on the engine, and when the train arrived there about midnight it stopped first at the water tank east of the station. While the engine was taking water, McDonald, the conductor, walked west past the tank to the depot for the purpose of leaving waybills which covered cars which were to be set off there, and to get waybills for cars that were to be picked up. As he went to the station he saw Walker standing near the engine. After taking water the train started west towards the tracks in which the switching was done; and, as the engine passed the station, McDonald saw Walker standing in the gangway of the engine behind Sanders, the engineer. In this McDonald is corroborated by Sanders, who says Walker was on the gangway behind him after the train had pulled up from the depot in the west of the yard; and the last time Sanders saw Walker before the accident was when they were going to the west end of the yards, and Walker, who was still standing in the gangway, tapped Sanders on the shoulder and said something to him about picking up and setting off cars.

The train stopped in the west end of the yards, and McDonald, the conductor, cut it in two eight cars back from the engine. The engineer then took the engine and the eight cars further west, beyond the connection between the main line and the passing track, and backed the train in on the passing track, where two cars were cut off and shoved in on the east storage track. The train then went west again beyond the end of the switches until the end of the rear car was west of the entrance to the west storage track. It then stopped and backed east on this track, and another car was cut off.

The track at this point curves to the south on the left-hand or fireman's side of the engine, and all signals given by the trainmen were received by the fireman and repeated to the engineer, who could not, from his position on the right of the engine, see the signals. After the car last mentioned had been shoved onto the west storage track, McDonald signaled for the train to move forward again, but, as this signal was not acted upon by the engineer, McDonald went forward to see what was the matter, and learned that Sanders, the engineer, had discovered Walker's body lying between the rails of the main line and immediately in front of the engine. Sanders had not seen Walker since just before the switching began, when Walker spoke to him in the gangway of the engine. Walker was fatally injured, and lived about a half hour, dying before a doctor could reach him.

No one saw the accident, but, when Walker was asked by the engineer and the conductor how he happened to get hurt, he said he fell between the cars. As McDonald went toward the engine to learn what was the matter, he found Walker's hat and lantern lying between the main line and the passing track at a point between 70 and 90 feet from Walker's body; and at that point McDonald and other witnesses also noticed, between the rails of the main line and near the southern rail, evidence that Walker's body had been dragged along the track. The distance from the point where Walker's hat and lantern were found and where the first evidence of his dragged body appeared back to the west end of the cars left on the main line was, according to McDonald's testimony, over 300 feet. And, while McDonald says Walker's body was dragged from 70 to 90 feet westwardly, Henderson says it was dragged about 300 feet, as shown by the remains of Walker's body scattered along the track. Walker was badly cut up by the train, the undertaker having found pieces of his limbs 97 steps east of where his body was found. Evidently he had fallen between the cars and had been dragged at least that distance by the wheels and brakebeams of the cars. It is not known or shown whether more than one car passed over him, as no one testified to having seen him between the time he spoke to Sanders in the gangway of the engine and the time when his body was subsequently discovered by Sanders on the track.

Fields, the rear brakeman, died before the trial.

The petition alleged three grounds of negligence as the basis of a recovery: (1) That the engineer in charge of the train negligently started or stopped it with an unusual and unnecessary jerk, which threw Walker from the train and caused his death; (2) that the appellant negligently placed Walker in a dangerous employment and in a dangerous position without warning him of the danger, and before he had sufficient experience or knowledge to guard against the danger; and (3) that the employés of appellant in charge of the train saw, or, by the exercise of ordinary care, could have seen, Walker when ...