Cincinnati, N.O. & T.P. Ry. Co. v. Swann's Adm'x

• Decision Date: 22 October 1914
• Parties: CINCINNATI, N. O. & T. P. RY. CO. v. SWANN'S ADM'X.
• Court: Kentucky Court of Appeals

169 S.W. 886

160 Ky. 458

CINCINNATI, N. O. & T. P. RY. CO. v. SWANN'S ADM'X.

Court of Appeals of Kentucky.

October 22, 1914

Appeal from Circuit Court, Boyle County.

Action by M. B. Swann's Administratrix against the Cincinnati New Orleans & Texas Pacific Railway Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

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

O'Rear & Williams, of Frankfort, and Robert Harding, Emmett Puryear and John W. Rawlings, all of Danville, for appellee.

CARROLL J.

M. B Swann, while engaged as an employé of the appellant railway company, was killed by one of its trains, and in this suit by his administratrix to recover damages for his death, there was a verdict and judgment against the railway company, followed by this appeal.

On a former appeal a judgment against the railway company was reversed, with direction to direct a verdict in its favor if the case was retried. The opinion on the former appeal may be found in 149 Ky. 141, 147 S.W. 889. On a return of the case the former suit, which was brought under the state law, was dismissed, and this suit instituted under the federal legislation known as the Employer's Liability Act.

At the time Swann came to his death, the railway company was engaged in interstate commerce, and he was employed by it in such commerce. Therefore no question is raised as to the right to maintain this action under the federal act.

It also seems to be conceded by counsel that the evidence in this trial was in every substantial respect the same as the evidence on the first trial, and as the facts are very fully stated in the opinion referred to, it is unnecessary that we should restate them in detail here. In order, however, that this opinion may show the facts as well as the law that we consider applicable to this case, we will briefly set them out.

The railway company was putting in two water columns near the railroad tracks at Williamstown Station. One of these was known as the north column and the other as the south column, and the work on these columns had been in progress about 10 days when Swann was killed. On the day in question Swann was the acting foreman of the crew of men engaged in putting in these water columns. At Williamstown the railway company has a passing track, and shortly before 8:25 in the morning a south-bound accommodation train went in on this passing track for the purpose of letting a fast north-bound train, known as the Carolina Special, go through on the main track. This train was due at Williamstown at 8:23 a. m., and on this morning arrived there at 8:25 a. m. When it passed the south water column the engine struck and instantly killed Swann, who was standing on or near the end of the ties on the main track looking into the pit near the track, which had been excavated for the water column. He had only been in this position a few seconds when he was struck by the engine. The evidence shows, virtually without contradiction, that Swann could have looked into this pit as he was doing when struck, from certainly two and probably three other places, and that if he had chosen any of these other places the engine or train could not have struck him. Why he selected this dangerous place in preference to the safe place does not appear. Probably he did so because it was more convenient to stand on the end of the ties than to walk around and look into the pit from the other sides of it. Williamstown was not a regular stopping place for this Carolina Special, and it never stopped there except to receive orders, and on this morning was going by the station at a speed of probably 30 or 40 miles an hour. The perilous position of Swann was not discovered by either the fireman or engineer until the engine was within a few feet of him, and it was then too late to take any steps to prevent the engine from striking him. The reason he was not sooner discovered was that the train rounded a sharp curve in the track just before coming to the point where Swann was standing.

It was the duty of Swann as foreman of this work to keep advised of the time of trains, so that he might warn the men under him of their approach, and also to keep the track free from tools and material used by the men in the progress of the work, and he was required to and did keep a watch as well as a time card. In short, one of his duties was to keep a lookout for the approach of trains, so that the track would be safe and the men under his charge protected. There is also evidence that a day or so before his death the attention of Swann had been sharply called, as the result of a controversy between some of the men, to the time of the arrival of this Carolina Special, but we do not attach importance to this circumstance, as it was his duty to know and he did know the time when it was due, and on this morning it was only two minutes behind its schedule time. It was also shown in evidence for the administratrix that a public highway crossed the tracks of the railway company a short distance south of the point where Swann was struck, and that it was the duty of the engineer before reaching this highway crossing to give the statutory signals, is of course not denied, but whether he did give them or not is in dispute. Rules of the company were also introduced showing that it was the duty of the persons in charge of this train to have it under control, keep the bell ringing, and proceed at a much slower rate of speed than the train was going at places where the conditions were similar to those existing at Williamstown.

The acts of negligence charged in the petition and sustained by some evidence, are as stated by counsel for appellee: (a) That the train was being run at a reckless and dangerous rate of speed; (b) that the engineer and those in charge of the train negligently failed to keep a lookout for Swann and others engaged in putting in the water column beside the track; (c) that no warning was given by the engineer of the train's approach. The answer, besides traversing the averments of the petition, affirmatively set up contributory negligence on the part of Swann, as well as the assumption of risk. But we shall not enter into a discussion of these defenses except in so far as they may throw light on the question whether the employés of the railway company in charge of the train were, as a matter of law, negligent in the particulars named, or any of them. In other words, we shall devote what we have to say to a consideration of the question whether the railway company owed to Swann the duty of having its train under control, keeping a lookout, and giving warning of its approach, or the duty of doing any one of these acts. If the railway company was not guilty of negligence in one of these respects, or if it did not owe Swann the duty of observing the measure of care indicated, there can be no recovery in behalf of his estate.

The federal statute known as the Employer's Liability Act, expressly provides that in cases like this a cause of action arises "for such injury or death resulting in whole or in part from the negligence of any of the officers, agents or employés of such carrier, or by reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves or other equipment." So that unless the death of Swann resulted in whole or in part from the negligence of the employés in charge of the train that struck him, there can be no recovery; and it is equally true that these employés could not have been guilty of negligence towards him unless they failed to discharge some duty owing to him. Long v. Southern Ry. Co., 155 Ky. 286, 159 S.W. 779; Helm v. C., N. O. & T. P. Ry. Co., 156 Ky. 240, 160 S.W. 945.

It will be noticed that the federal act under which this action was brought does not undertake to define the character or degree of negligence necessary to a recovery. This being so, we think that when an action is brought under the federal act in our state courts to recover damages for injuries suffered on account of the negligence of another employé, the rules of law prevailing in this state must be looked to in determining whether the acts or omissions complained of amount to negligence. There is no difference in cases like this in the character or degree of negligence necessary to sustain a verdict and judgment, whether the action be brought under the federal or state law. The negligence that would authorize a recovery under one would authorize it under the other, and if the evidence is not sufficient to sustain a recovery under one, neither will it be sufficient to sustain it under the other. This statement is of course confined to cases presenting facts similar to those disclosed in this record which do not involve defects in cars, engines, machinery or other equipment, and also leaves out of consideration entirely the question of contributory negligence and the rules of law relating thereto. Therefore, if the railway company, or its employés, under the rules of law prevailing in this state when the cause of action arose, were not guilty of actionable negligence, there can be no recovery in this case.

Having this view of the matter, we might rest a reversal of the judgment upon the ground that the decision in this case should be controlled by the opinion on the former appeal. In that opinion it was said, on the same facts here shown, that the court should have instructed the jury peremptorily to find for the defendant, and this conclusion, as we conceive, was put upon the ground that the railway company did not commit towards Swann any breach of duty, and hence there was no negligence on its part.

The...