Cincinnati, N.O. & T.P. Ry. Co. v. McWhorter

• Decision Date: 22 April 1924
• Parties: CINCINNATI, N. O. & T. P. RY. CO. ET AL. v. MCWHORTER.
• Court: Kentucky Court of Appeals

262 S.W. 253

203 Ky. 252

CINCINNATI, N. O. & T. P. RY. CO. ET AL. v. MCWHORTER.

Court of Appeals of Kentucky.

April 22, 1924

Rehearing Denied June 24, 1924.

Appeal from Circuit Court, Boyle County.

Action by G. H. McWhorter against the Cincinnati, New Orleans &amp Texas Pacific Railway Company and another. Judgment for plaintiff, and defendants appeal. Reversed and remanded.

Maurice L. Galvin and Edward Colston, both of Cincinnati, Ohio, and Chas. H. & Nelson D. Rodes, of Danville, for appellants.

Henry Jackson, George Stone, and Jay W. Harlan, all of Danville and John D. Carroll, of Frankfort, for appellee.

McCANDLESS J.

The Cincinnati, New Orleans & Texas Pacific Railway Company owns and operates a line of railway in the states of Kentucky and Tennessee, passing through a mountainous section between Somerset, Ky. and Oakdale, Tenn. From CD tower to KD tower in Kentucky, a distance of 4 1/2 miles, there is a double track. At the latter point the lines converge and run northward over a single track, the switch being a short distance to the north of the tower. There is a deep cut to the south, and an approaching train is not visible until it is within 600 feet of the tower.

Beginning at a point midway between these towers is the crest of a ridge with a downgrade extending northward on a double track to a switch at KD tower and then on the single track for several miles. The western track is used by the south-bound trains which normally have the right of way. The north-bound trains using the eastern track receive orders at KD tower before passing on the single track, and generally stop at that place for inspection, though in case a stop and inspection is made before reaching that point they may pass on if the track is open. At this place is established a block system of switching and signals, operated by levers located in the tower.

There are two signal posts. The first is about one mile south of the tower and the other a semaphore, just a few feet south of it, both being on the east side of the track and both operated by the same lever at the same time.

In the day if the arm of the semaphore raises perpendicularly, it signifies that the north-bound train has a clear track, while if it is extended horizontally it means that the track is closed, and at night green signifies a clear track and yellow and red signifies a closed track--danger.

On March 6, 1921, G. H. McWhorter, an experienced engineer, was in charge of a north-bound freight train which left Oakdale in the afternoon. Before leaving, the air brakes were tested and found all right, and the trip for 60 or 70 miles proceeded without incident, the train being stopped on several downgrades. It passed the crest of the ridge above mentioned just south of Greenwood, Ky. traveling at the rate of 25 or 30 miles an hour. Shortly thereafter McWhorter undertook to check its speed and discovered that the air brakes on the cars were not working. He made a second attempt with the same result, and thereupon whistled for the hand brakes. At the time the conductor and one brakeman were in the caboose and the fireman and head brakeman were in the engine. This brakeman responded to the call and started back to assist in setting the brakes. The engineer placed the engine in emergency and sanded the track. In the meantime the fireman undertook to reverse the engine, and his hand was caught between the lever and the boiler. The engineer was unable to extricate him and recalled the head brakeman to assist, and the two succeeded in releasing him. While this was going on, they passed a south-bound freight train, the noise of which possibly prevented the conductor from hearing the brake signal. Realizing that the block was against them at the passage of this train, and not knowing whether it had been changed, the three watched for the first signal. It showed yellow. A sudden emergency faced them. If the block was against them an open switch led into a deep ravine just north of the tower and a derailment, with consequent piling on the engine of the cars in the rear, and was fraught with the greatest danger, but if the block was open a clear track meant safety; they still hoped for this and decided to watch for the semaphore signal and if it was clear to ride the train through, otherwise to avoid the peril by jumping.

The momentum of the train was increasing and had reached a speed of 40 or 45 miles an hour. As they approached the semaphore no light was visible and they waited until they could discern its position. Watching closely at the sky line, they caught a glimpse of it standing with extended arm. This was the danger signal, and thereupon they jumped from the train, McWhorter receiving serious injuries.

The operator Wyatt was also an experienced man and had operated the tower for ______ years. According to his statement he reported the south-bound train upon its passage and while seated at his desk received the signal of the approach of McWhorter's train. This signal was given by the train passing over magnetized rails at a point two miles south of the tower and starting an electric signal in the tower known as a "buzzer." He notified the dispatcher who at once gave him an order for the train to be given a clear track. This order was dictated over the telephone and by him taken down in triplicate on order blanks, signed by him and repeated to the dispatcher. He then made out a clearance card which was also made out in triplicate and signed, copies of both to be delivered to the engineer and conductor and one retained by him. He says that while seated at his desk a friend of his named Corder, who was in the tower at the time, informed him that the train was emerging from the cut 600 feet distant and he believed it was "running away," that he glanced out and reached the same conclusion. He immediately threw the switches and also undertook to change the signal, but either worked the signal lever too rapidly or the train had passed too far before he undertook to change that lever, and by reason of this it could not be changed; it being shown that after the train reached a certain point within the block the signal stood at danger and could not be changed. By that time the train was passing and he rushed down with his orders in a hoop and handed them to the conductor. The train ran on for about 2 1/2 miles and stopped while still on a steep downgrade. When inspected afterward the air brakes on the cars seemed all right except as to four cars, this being a sufficient number to pass inspection.

It appears that while north-bound trains generally stopped for inspection at KD tower, there was no special point designated for that purpose, and when the block...