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

• Decision Date: 27 January 1916
• Parties: CINCINNATI, N. O. & T. P. RY. CO. v. TUCKER.
• Court: Kentucky Court of Appeals

181 S.W. 940

168 Ky. 144

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

Court of Appeals of Kentucky.

January 27, 1916

Appeal from Circuit Court, McCreary County.

Action by Sherman Tucker against the Cincinnati, New Orleans & Texas Pacific Railway Company. From a judgment for plaintiff defendant appeals. Reversed for new trial.

Tye Siler & Gatliff, of Williamsburg, for appellant.

Denton & Flippin, of Somerset, for appellee.

MILLER C.J.

While the appellee Sherman Tucker was working for the appellant as a section hand in a crew of five men, under the direction of John Cox, a section foreman, it became necessary to remove a rail in the track and put a new one in its place. In the course of the work Cox directed the men to carry a rail from a rail rest near the track to the place where it was to be put in the track, a distance of about 50 feet. Before attempting to carry the rail, Tucker said to Cox that the rail was too heavy for the men to carry; but Cox said he thought they could carry it, and directed them to do so. Thereupon Tucker and two of the men took hold of the rear end of the rail, and Cox and the other two section hands took hold of the front end of the rail and lifted it from the rail rest. They had carried the rail about six steps, when the men at Cox's end began to break down under the weight of it and, in order to enable them to lower the rail to the ground, Cox ordered the men at the rear end to straighten up with their end, while the men in front would ease down their end. Tucker and his colaborers held their end of the rail as directed, but in lowering the front end of the rail to the ground, Cox or one of his assistants dropped it, causing Tucker's back to be wrenched and injured. Tucker brought this action to recover damages for the negligence of the company in failing to furnish a sufficient number of hands to do the work required with reasonable safety to those engaged in it. He recovered a verdict for $500, and the company appeals.

The proof shows that the injury was the direct result of the dropping of the rail, and that it was dropped because Cox and the two section hands who were assisting him were not able to lift their end of it. No complaint is made that the verdict is excessive, or that the instructions given by the court were erroneous if the federal Employers' Liability Act did not control. For a reversal, however, it is urged: (1) That the court erred in refusing to give the instructions offered by the company, directing the jury to find for the defendant, unless they believed that gross negligence had been established; (2) that the misconduct of appellee's attorney in referring to the fact that Cox, the foreman, did not testify, was prejudicial; and (3) that appellant's motion for a peremptory instruction, made at the close of appellee's proof, to find for it should have been sustained, because, as appellant claims, this action should have been brought under the federal Employers' Liability Act.

The petition sought a recovery solely upon the ground of the negligence of the company in failing to furnish a sufficient number of men to handle its work, and the proof tended to sustain that charge, and the instructions properly submitted that issue to the jury. Under this state of facts the question of the gross negligence of Cox had no place in the case. The law applicable to cases of this character is stated in Illinois Central Railway Co. v. Langan, 116 Ky. 320, 76 S.W. 32, 25 Ky. Law Rep. 500, as follows:

"There are certain risks which a laborer assumes as an incident of his employment. Among these is that of the ordinary negligence of his fellow servants. Although each servant in the common employment is a representative of the master to the extent that he is acting within the scope of his duties, yet for many kinds of ordinary neglect towards his fellow servants the master may not be liable for resulting injuries. However, there are certain duties which the master owes to his servants that are primary and personal in their nature, and which he may not delegate to another so as to escape liability for their nonperformance. Among these he owes to his servants to furnish them a reasonably safe place in which to do their work, and must furnish them reasonably safe tools and appliances with which to do it. Alongside of these he must furnish them adequate assistance, or a sufficient number of workmen. So where the master assigns or imposes upon one of his servants the duty of representing him in providing these means, the servant's acts are deemed to be those of the master, and for a simple neglect by such servant the master is responsible as though he acted in person."

To the same effect see Standard Manufacturing Co. v. Minor, 112 S.W. 572, 33 Ky. Law Rep. 972; L. & N. R. R. Co. v. Mahan, 113 S.W. 886. We find no error in this respect.

In the course of his argument to the jury, appellee's counsel used the following language:

"If section foreman John Cox did not say to the plaintiff, Sherman Tucker, the man working with him, that they could carry the rail, then the attorney representing the defendant company is too good a lawyer not to have put Cox on the stand as a witness, and have him deny making such statement."

The appellant offered no proof at all; it rested its case upon appellee's proof. It should be borne in mind that this is not a criminal, but a civil, action, and that there is no statutory restriction upon the comment of counsel in civil cases. Tucker testified that Cox not only told him that the men could carry the rail, but commanded them to do so, and Cox did not testify. Under this state of case it was legitimate for counsel to comment upon the fact that Cox had not testified, and that his absence was not explained.

The petition was drawn under the state law; there is nothing in it to indicate that Tucker was engaged in any work connected with interstate commerce at the time of his injury. The answer contains a traverse, and a plea of contributory negligence. It was developed upon the trial, however, that appellant was an interstate carrier, and that at the time Tucker was injured, he was employed by the appellant and...