Coons v. Louisville & N.R. Co.

• Decision Date: 21 November 1919
• Parties: COONS v. LOUISVILLE & N. R. CO.
• Court: Kentucky Court of Appeals

215 S.W. 946

185 Ky. 741

COONS v. LOUISVILLE & N. R. CO.

Court of Appeals of Kentucky.

November 21, 1919

Appeal from Circuit Court, Oldham County.

Action by John Coons against the Louisville & Nashville Railroad Company. From directed verdict for defendant, plaintiff appeals. Reversed, with directions.

Robt. T. Crowe and J. Ballard Clark, both of La Grange, for appellant.

D. H French, of La Grange, and Moorman & Woodward and Benjamin D Warfield, all of Louisville, for appellee.

QUIN J.

In this case declared under the federal Employers' Liability Act (Act April 22, 1908, c. 149, 35 Stat. 65 [U. S. Comp. St. §§ 8657-8665]), appellant, a section hand in appellee's employ for about 14 years, is seeking damages for injuries received May 17, 1916, while loading steel rails onto a flat car. From a directed verdict for the company at the conclusion of appellant's evidence, this appeal is taken.

The correctness of this ruling raises two main questions, viz (1) Is the case triable under the federal act? and (2) was appellee guilty of negligence?

The Facts. The rails which the men were loading came from the Lexington branch of the Louisville & Nashville Railroad Company near Midway, and had been piled on crossties near the track. They were being loaded for shipment to Hazard, Ky. for use in the tracks in appellee's yards, and which tracks were used in intrastate and interstate traffic. Because of their weight the handling of rails necessitates the services of several men. Two rails used as skids were placed with one end resting on the flat car; the other on the ground or ties under the rails. Unity of action being required, it is customary to appoint one or two of the more experienced men as end men. Those so chosen are usually stationed at the end of the rails, and their duty is to give orders when to load. It is the duty of the other members of the gang to obey the orders of the end men.

At the time of the accident all the rails had been loaded with the exception of four or five. W. C. Vandiver was the foreman and Boone Gibson the end man. One of the remaining rails had become fastened under the ties and their first effort to dislodge it failed. Gibson told appellant to take hold of the rail and help them get it out. Appellant stepped in, straddled the rail, and (quoting from one of the men) "when he stepped in why they raised the rail up and threw it back, and there was another rail there, and as he stepped between them this rail clamped him." Appellant's leg was broken, and he sustained other injuries according to the allegations of the petition.

The Federal Act. We think appellant had a right to maintain his action under the federal act.

In I. C. R. R. Co. v. Kelly, 167 Ky. 745, 181 S.W. 375, a recovery was denied where an employé was injured while loading rails to be stored, because in the performance of such service the employé was not engaged in interstate commerce; but it is expressly held that the action could have been sustained under the federal law had the injury occurred while unloading rails that were later used in repairing the tracks of the company, an interstate carrier.

C., N. O. & T. P. R. Co. v. Hansford, 173 Ky. 126, 190 S.W. 690, involved facts quite similar to the Kelly Case, supra, and a judgment was reversed because appellee did not show he was engaged in interstate commerce; he was loading old rails that had at some time been taken out of the track and were lying on the right of way.

In Probus v. I. C. R. R. Co., 181 Ky. 7, 203 S.W. 862, the question was held one for the jury as to whether at the time of the injury appellant was engaged in interstate commerce. Probus testified that his information from the foreman was that the rails they were loading and unloading, were to be used in repairing the company's main line. Probus and appellant (Coons) were injured under very much the same circumstances.

In C., N. O. & T. P. Ry. Co. v. Tucker, 168 Ky. 144, 181 S.W. 940, the employé was injured while carrying a rail, due to the fact that other members of the section crew were unable to hold their end of it, and it was held he made out a case for the jury under the federal and not the state law.

In Ohio Valley E. Ry. Co. v. Brumfield's Adm'r, 180 Ky. 743, 203 S.W. 541, it was held that appellee was engaged in interstate commerce where he and his crew, after picking up old ties along the right of way, were throwing them on the side of a fill for the purpose of strengthening the latter.

In Schaeffer v. I. C. R. R. Co., 172 Ky. 337, 189 S.W. 237, where decedent at the time of his injury was engaged in removing wreckage not shown to have again been put to use in interstate commerce, a peremptory instruction was held proper.

In the following cases employés were held to have been engaged in interstate commerce at the time they were injured: Painting a bridge used for interstate traffic (L. & N. R. R. Co. v. Netherton, 175 Ky. 159, 193 S.W. 1035); a section hand going to the place designated by his foreman to assist in unloading ties (L. & N. R. R. Co. v. Williams' Adm'r, 175 Ky. 679, 194 S.W. 920); a carpenter engaged in making extension to repair shops (Thompson v. C., N. O. & T. P. Ry. Co., 165 Ky. 256, 176 S.W. 1006, Ann.Cas. 1917A, 1266); laborer on trestle work while returning from work on premises of carrier (L. & N. R. R. Co. v. Walker's Adm'r, 162 Ky. 209, 172 S.W. 517); repairing a side track (Jones v. C. & O. Ry. Co., 149 Ky. 566, 149 S.W. 951); throwing ashes from an ash pit (C., N. O. & T. P. Ry. Co. v. Clarke, 169 Ky. 662, 185 S.W. 94); using a tricycle to look after repair and maintain electric signals (L. & N. R. R. v. Mullins' Adm'x, 181 Ky. 148, 203 S.W. 1058); working on a turntable (C. & O. Ry. Co. v. Kornhoff, 167 Ky. 353, 180 S.W. 523).

One of the leading cases on this subject is Pedersen v. D. L. & W. R. Co., 229 U.S. 146, 33 S.Ct. 648, 57 L.Ed. 1125, Ann.Cas. 1914C, 153. It is argued by counsel for appellee that this decision, so often relied upon by injured employés, has been modified by the later opinions of the Supreme Court. It has frequently been cited with approval by this court and as late as 181 Ky. (Probus Case, supra).

In the Pedersen Case an employé, killed while carrying a sack of bolts or rivets to be used in repairing a bridge which was in use in both intrastate and interstate commerce, was held to be employed within the meaning of the federal act. The bolts were for use the afternoon of the accident or next day. The United States courts have referred to this case...