Cincinnati, N.O. & T.P. Ry. Co. v. Jones' Adm'r

• Decision Date: 16 June 1916
• Citation: 186 S.W. 897,171 Ky. 11
• Parties: CINCINNATI, N. O. & T. P. RY. CO. v. JONES' ADM'R.
• Court: Kentucky Court of Appeals

186 S.W. 897

171 Ky. 11

CINCINNATI, N. O. & T. P. RY. CO. v. JONES' ADM'R.

Court of Appeals of Kentucky.

June 16, 1916

Appeal from Circuit Court, Lincoln County.

Action by George Jones' administrator against the Cincinnati New Orleans & Texas Pacific Railway Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

K. S Alcorn, of Stanford, and John Galvin, of Cincinnati, Ohio for appellant.

Robert Harding, of Danville, George D. Florence, of Stanford, and E V. Puryear, of Danville, for appellee.

HURT J.

This action was instituted by the appellee, the administrator of George Jones, deceased, against the appellant, Cincinnati, New Orleans & Texas Pacific Railway Company, to recover of appellant damages for alleged negligently running one of its trains against Jones and causing his death. The action was brought and the recovery sought under the provisions of the federal Employers' Liability Act. At the time he was struck by the engine of the train and killed, Jones was an employé of the appellant, and was engaged, along with others, under the direction of a foreman, G. T. Hicks, in repairing the tracks of appellant's railroad at a point in Kenton county.

The appellee alleged that the death of Jones arose from the negligence of other employés of appellant, while the appellant denied any negligence upon its part, and relied upon the alleged contributory negligence of Jones in diminution of damages, and also pleaded that the negligence of Jones was the sole and only cause of his death, and that his death was not caused in whole or in part by any negligent act upon its part. At the close of the evidence offered by appellee, and at the close of all the evidence, the appellant moved the court to peremptorily direct a verdict in its behalf, but these motions were overruled by the court. The appellant offered two instructions, which were refused. The appellee moved the court to peremptorily instruct the jury to return a verdict for him, and offered instructions, one of which directed the jury to find a verdict for him. The court refused the instructions offered by appellee, and then upon its own motion, and over the objection of appellant, gave to the jury five instructions. By the first of these the jury was peremptorily directed to find a verdict for appellee, and it contained directions as to the measure of damages. The second instruction related to the duty of the jury as to apportioning the damages found between the widow and dependent children of Jones. The third instruction related to the duty of the jury if it found that Jones was guilty of any negligence which contributed to his death. The fourth instruction defined "negligence" as used in the instructions. The fifth instruction directed the jury that, as many as nine of its members concurring, it could find a verdict, and the form of the verdict if all the jury should agree, and its form if less than the whole number, but as many as nine of the members, should agree.

The jury returned a verdict for appellee, and the court rendered a judgment in conformity therewith. The appellant seeks a reversal upon the following grounds, which it assigns as errors: (1) The court overruled its motion for a direct verdict; (2) the court refused to give an instruction which was offered by it basing a defense upon the decedent having assumed the risk of doing the acts in which he was engaged, at the time he was struck by the train; (3) the court decided as a matter of law that the proven negligence of appellant, in whole or in part, caused the death of decedent, and peremptorily instructed the jury to return a verdict for appellee; (4) the court erred in defining the measure of damages; (5) the instruction upon contributory negligence was erroneous and prejudicial.

The facts and circumstances which resulted in the death of decedent appear to be as follows: G. T. Hicks was the foreman of a gang of men of whom deceased was one, and who were engaged in the work of repairing the tracks of appellant's railroad where it passes through Kenton county. The particular work in which they were engaged was that of "spacing ties," and to enable them to elevate the rails when necessary two appliances, which were called "jacks," were in use. The "jacks" were made of iron, and were about 18 inches in height, and weighed from 50 to 75 pounds, and a part of it consisted of a lever about 5 or 6 feet in length, which worked in notches. The "jack" was placed against the rail, and by the mechanism of the lever the rail was elevated to the point desired. In the progress of their work upon the occasion of decedent's injuries the "jacks" were placed against the rails upon each side of the track, and the rails elevated about 3 inches. At the point where the "jacks" were situated upon the east side of the track an embankment arises which is from 15 to 40 feet in height, according to the opinions of the different witnesses. Between the ends of the cross-ties upon the east side of the track and the embankment there was a shallow ditch about 18 inches in depth and variously estimated in width. Between the ends of the ties, upon the east side of the track and the foot of the embankment the distance is stated by the various witnesses to be from 2 1/2 feet to 8 feet. On the west side of the track, upon which they were at work, was another track. The one upon which the repairs were being made was the track over which appellant ran its trains which were north-bound. Early on the morning of the day upon which deceased was killed the foreman of the gang of workmen, Hicks placed a green flag upon the east side of the north-bound track, about one mile to the south of where the repair work was being done. This was a warning to the engineers of north-bound trains to be on the lookout and to keep their trains under control and to proceed with reduced speed, so as to enable them to protect the train and passengers against any danger that may be upon the track in advance of the train. The tracks from the south to the north were upon a declining grade, and south of the point where decedent and his companions were working there was a curve in the course of the track which prevented persons at the place where the decedent was from seeing the approach of a train from the south until the engine should arrive at a point about 300 feet distant, nor could those upon the train see the presence of persons upon the track where decedent was at work sooner than when at that distance. About half after 7 o'clock in the forenoon a passenger train came from the south, moving at a speed of from 25 to 30 miles per hour, and gave no warning of its approach to where the decedent was at work, either by whistle or bell. Several of the witnesses who were of the section gang and at work along with the decedent testify that they did not know of the approach of the train until they saw it about nine rails' length or 300 feet away. The foreman testifies that he was standing upon the track near to where decedent was at work, and that he heard the approach of the train and became aware of its coming before it came in sight. At this time the decedent was clear of the track, but upon the east side of it, between the track and the embankment. The foreman immediately called out to the men that "something was coming," and to get the "jacks" out of the way. An employé whose name was Seward ran to the "jack" that was against the west rail of the track, and at the same time the decedent ran to the one which was against the east rail of the track, and each of them seized the lever to the "jack" at the respective point and undertook to disengage and remove it. Seward did not succeed immediately, and the foreman went to his assistance and removed the "jack" into the space between the tracks. The foreman then discovered that decedent was having trouble with removing the "jack" at which he was working. The mechanism, in some way, did not work. The decedent was standing on the east side of the track at the end of the cross-ties, and endeavoring to work the lever so as to disengage the "jack" and to remove it, but seemed to be excited, and did not succeed. The foreman ran across the track from the west side of it to where decedent was on the east side, and called to decedent to get out of the way and permit him get the "jack." The decedent was standing with his back to the approaching train, and did not heed the order of the foreman until the foreman said to him to get out of the way and let the train knock it out. The train was then very near when decedent released the lever of the "jack" and jumped over onto the track in front of the engine and undertook to run across the track to the west side, in front of the engine, which struck him and knocked him from the track. He fell upon the west side of the track in an unconscious condition, and died within a short time. The "jack" was struck by the engine and knocked to a distance of 15 feet, to a point on the east side of the track, and north of where it was struck. The foreman and others of the gang stood upon the east side of the track, and were unharmed by the passing train, while others moved to the west side when the train passed by. The train was stopped...