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

• Decision Date: 23 May 1911
• Citation: 143 Ky. 765,137 S.W. 543
• Parties: CINCINNATI, N. O. & T. P. RY. CO. et al. v. TROXELL.
• Court: Kentucky Court of Appeals

137 S.W. 543

143 Ky. 765

CINCINNATI, N. O. & T. P. RY. CO. et al. v. TROXELL.

Court of Appeals of Kentucky.

May 23, 1911

Appeal from Circuit Court, Pulaski County.

Action by Rufus Troxell, by his guardian, against the Cincinnati New Orleans & Texas Pacific Railway Company and another. Judgment for plaintiff, and defendants appeal. Reversed and remanded.

John Galvin and O. H. Waddle & Son, for appellants.

H. C Faulkner & Son and B. J. Bethurum, for appellee.

CLAY C.

Appellee Rufus Troxell, an infant, suing by his guardian, brought this action against appellants, Cincinnati, New Orleans & Texas Pacific Railway Company and J. L. McEwen, to recover damages for personal injuries alleged to have been received through their negligence. A trial by jury resulted in a verdict and judgment in favor of appellee in the sum of $9,000, and the railway company and McEwen appeal.

The facts are as follows: About a week prior to the accident resulting in the injuries complained of, appellee was employed by appellant's section foreman as a section hand. At the time of his employment he produced the written consent of his mother and stepfather. Appellee was paid $1.30 per day. At the time of his employment he was about 16 years of age. After having worked for about six days in the section crew, that crew, on Sunday, April 28, 1907, was ordered to the coal chutes in the yards at Ferguson shops to assist in building a temporary track for the purpose of rerailing an engine that had fallen from the coal chute track down the embankment on the east side of the coal chutes. Appellee's duty was to carry water to the sectionmen from a spring located about 200 yards north of the coal chutes, and while not so engaged to do the work of a section hand. South of Somerset is the incorporated town of Ferguson, and just south of its limits the railway yards and shops are located. The coal chutes are situated upon an embankment high enough above the coal chute track to permit fuel to be dumped into the tenders of engines, and upon the east side of the coal chutes there is a track on which the coal cars are run up in an elevated position for the purpose of dumping the coal on the platform of the coal chutes. It was from this elevated track that the engine whose derailment made necessary the presence of the section gang had fallen. On the west side of the coal chutes, and immediately next to them, there is a main track known as the coal chute track. A short distance north of the coal chutes another track leads off from the coal chute track and runs parallel with, and at a distance of, about 16 1/2 feet, from it to other points in the yard. From this second track, and at a distance of about 100 feet from the north end of the coal chutes, another track branches off and runs into other portions of the yard. The coal chute track runs immediately along the western front of the coal chutes for a distance of about 600 feet, and then curves off and branches into different tracks leading to the turntable, shops, and other points in the yard. At the dinner hour, the section crew, with appellee, left their work on the east side of the coal chutes and crossed over the coal chute track and adjoining track to a shanty located between the coal chute track and the main line of the railroad for the purpose of getting dinner. While at dinner a large engine, in passing over the frog at the intersection of the second and third tracks from the coal chutes and nearly opposite the third coal chute, became derailed so as to block these two tracks, thus making it necessary to use the coal chute track alone in moving engines in and out of the shop yards. Within a few minutes after the derailment of this engine, appellant McEwen, in charge of an engine as engineer, with D. D. Dorn as fireman, left the Somerset yards, north, and went down to the shop yards over the coal chute track for the purpose of taking water. Finding too many engines ahead of him, he came backup the coal chute track for the purpose of getting water in the Somerset yard, and, just after passing the large engine derailed at the frog of the second and third tracks from the coal chutes, the engine struck appellee, cutting off his leg and otherwise injuring him.

According to appellee's evidence, the accident occurred in the following manner: Just after he had finished eating dinner, the foreman directed him to get his water bucket, which had been left on the east side of the coal chutes. For that purpose, he started down the embankment on the west side of the coal chutes near where the large engine was derailed at the frog. He claims that he chose this route because the embankment on the west side of the track was lower at that point. He did not go down to the derailed engine as a matter of curiosity, but of necessity. When he passed around the derailed engine, and got between it and the coal chute track, he stopped to put a chew of tobacco in his mouth. He then looked up and down the coal chute track, and saw no engines running in either direction. He then crossed over to the coal chute track for the purpose of reaching a path which he claims led up the embankment between the second and third coal chute tracks. After walking some eight or nine steps, something struck him from behind, and that was the last he remembered until the third day after, when he came to himself in the hospital. He did not hear the whistle blow or the bell of the engine ringing. On cross-examination he admitted that, about three weeks later, Walter Dale signed for him a written statement, in the presence of C. R. Staples, the railroad claim agent, to the effect that he walked around the derailed engine and stepped upon the track right in front of another engine; that the engine that was off the track had a blower going, and was making a lot of noise; that this was the reason he did not hear the engine before it hit him. Appellee stated, however, that he did not know whether the written statement was read over to him or not.

W. H Roy, a section hand of the same crew, who had preceded appellee across the track, states that, when he got across the track, he saw the engine that struck appellee coming up the coal chute track about 200 yards away. He then went on and climbed up the coal chute across some bannisters, and about that time it seemed like there was a boy struck by an engine from the west side. He was about 20 feet from Troxell when the accident occurred. The engine ran about three rail lengths after striking Troxell, and at the time was...