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

• Decision Date: 26 April 1916
• Parties: CINCINNATI, N. O. & T. P. RY. CO. v. CLARKE.
• Court: Kentucky Court of Appeals

185 S.W. 94

169 Ky. 662

CINCINNATI, N. O. & T. P. RY. CO. v. CLARKE.

Court of Appeals of Kentucky.

April 26, 1916

Appeal from Circuit Court, Boyle County.

Action by Phillip Clarke against the Cincinnati, New Orleans & Texas Pacific Railway Company. Judgment for plaintiff, motion for new trial overruled, and defendant appeals. Affirmed.

Charles H. Rodes and Nelson D. Rodes, both of Danville, and John Galvin, of Cincinnati, Ohio, for appellant.

Chenault Huguely, Robert Harding, E. V. Puryear, and C. C. Bagby, all of Danville, for appellee.

HURT J.

The appellee, Phillip Clarke, was an employé of the appellant Cincinnati, New Orleans & Texas Pacific Railway Company, and engaged in working for appellant in its yards at Lexington Ky. In the yards of appellant at that place, among other tracks which it had, was a side or switch track, which extended over an ash pit, wherein the ashes from the engines were dumped when it was necessary to clean out the ashes from them. The track was called the "pit" track. At its north end it lead off from another switch track, at the switch which leads to the turntable, and at its south end the "pit" track connects with another side track. The pit is about 40 feet in length, and the floor of it is laid with brick. The "pit" track passes over the pit from the north to the south longitudinally, and is supported throughout the length of the pit by iron pillars which rest upon the floor of the pit. The rails which compose the track are 2 feet and 7 inches above the floor of the pit, and the side walls of the pit are about 1 1/2 feet from the rails on the east and west sides of the track, respectively. When it was desired to remove the ashes which had accumulated in an engine, the engine was brought onto the "pit" track and stopped over the pit, when two employés of the appellant cleaned the ashes from the engine into the pit. After the engine was removed, one of the employés got into the pit and shoveled the ashes out upon a platform, and from the platform threw them into a car on a nearby track, in which the ashes were hauled away. All of the engines used upon the road of appellant, those engaged in transporting interstate as well as intrastate freights and passengers, including the switch engine in the yards, were cleaned of their ashes into the pit. The appellant was engaged in both interstate and intrastate commerce. The appellee was employed as an assistant to the hostler in the yards, who was on duty at night. The hostler has two assistants, one of whom was called the "fire knocker," and the other the "pan puller." Among the other regular duties of the "fire knocker" was, when an engine was upon the pit to be cleaned of its ashes, to assist in so doing by knocking the ashes down to where they could be reached by the "pan puller." Among the other regular duties of the "pan puller" it was his duty to get into the pit under the engine and pull the ashes out of the engine down into the pit by the use of an instrument for that purpose, and, where there was no engine over the pit, to get into the pit and clean it of ashes, as has been above detailed. The appellee held the position and performed the duties of the "pan puller." During each night, and about the midnight hour, the crew which operated the switch engine in the yard of appellant would bring it upon the "pit" track and leave it on the track, about 40 or 50 feet to the south of the pit, when they would go and take something to eat. While the switch crew was absent the hostler would take charge of the switch engine and place it over the pit, and, after it was cleaned of its ashes, would replenish its water and coal supply, and then place it at the point where the switch crew had left it, when the switch crew would again take charge of it. On the night of September 7, 1913, one of appellant's freight trains came from Cincinnati, Ohio, into the Lexington yard, and another from Oakdale, Tenn., and the engines which moved each of these trains were cleaned of their ashes at the pit by the appellee and the "fire knocker." An engine which brought a train over the Louisville Southern from Louisville, Ky. was also cleaned, and the ashes from it dropped into the pit. About midnight the appellee was assisting the hostler, who was his superior in authority and whose directions it was his duty to obey, in turning the engine upon the turntable, and when that work was finished the hostler directed appellee to proceed and clean the pit of the ashes in it, which was one of his regular duties. He claims that he got into the pit between the rails of the track and sat his lantern down near him, and proceeded to throw out the ashes, and in so doing one of his legs was pressed against the rails of the track, with his face toward the south end of the pit, and while at this work he observed the rail against which his leg was pressing to move, and, looking around to discover the cause, for the first time became aware that the switch engine was backing over the "pit" track and was immediately upon him, and that in order to escape it he was obliged to instantly and hurriedly attempt to get out of the pit, over the east rail of the track, and that in so doing his left foot was caught upon the rail by the wheel of the engine and was so badly crushed that three of his toes had to be amputated, and the bones between the large toe and the instep were crushed. Up to the time of the trial, which was nearly one and a half years after the injury, he had been unable to perform any kind of manual labor, a suppurating sore was in the bottom of his foot, and the testimony of the surgeon was to the effect that a further amputation of about one-half of the injured foot would have to be effected before it could be cured. After the injury appellee remained in the hospital for several months before he was discharged from it. Appellee further testified that he saw no light upon the engine, and, if any warning of its approach was given by a whistle or ringing of the bell, he did not hear it.

Appellee instituted this suit for the recovery of damages for his injuries, and alleged that his injury was caused by the negligence of the servants of appellant, and that appellant was at the time engaged in interstate as well as intrastate commerce, and that employment in which he was engaged at the time of his injury was a work in furtherance of both interstate and intrastate commerce.

The appellant, before answering, moved the court to require appellee to elect whether he would rely upon the federal statute known as the federal Employers' Liability Act for redress of his grievances, or whether he would rely for recovery upon the common law of the state. The court overruled the motion, to which appellant excepted. The appellant then filed an answer, in which it traversed the allegations of the petition, and denied that either appellant or appellee were engaged in interstate commerce at the time of the injury, and, in addition, pleaded assumed risk and contributory negligence as a defense to the action. The affirmative allegations of the answer were controverted by a reply.

At the conclusion of the evidence for appellee and at the conclusion of all the evidence the appellant moved the court to direct the jury to find a verdict for it, which motions were both overruled, and appellant excepted. At this point in the proceedings the appellant renewed its motion to require appellee to make an election as to whether he would rely upon the federal law or the common law of the state. The court sustained the motion and required the appellee to make an election, when it elected to rely upon the federal act. The appellee objected to being required to make an election, and excepted to the ruling of the court.

The jury returned a verdict for appellee, fixing the amount of his recovery at the sum of $3,000, and a judgment was rendered in accordance therewith.

The appellant's motion for a new trial being overruled, it appealed and now relies for a reversal: First, because the court overruled its motion before it answered to require appellee to elect whether he would proceed under the federal act of the common law; second, because the court overruled its motion, at the conclusion of appellee's evidence and at the conclusion of all the evidence, to direct the jury peremptorily to find a verdict for it; third, because the court erred in giving to the jury instruction C; fourth, because the court refused to give to the jury instructions 1, 2, 3, 4, and 5 offered by it; fifth, because the verdict is flagrantly against the evidence and not sustained by sufficient evidence. The grounds relied upon for reversal will be considered in their order.

The court should have sustained appellant's motion to require appellee to elect whether he would proceed under the federal Employers' Liability Act or the common law....