Donahue v. Louisville, H. & St. L. Ry. Co.

CourtCourt of Appeals of Kentucky
Writing for the CourtSAMPSON, J.
Citation183 Ky. 608,210 S.W. 491
Decision Date18 March 1919
PartiesDONAHUE v. LOUISVILLE, H. & ST. L. RY. CO.

210 S.W. 491

183 Ky. 608

DONAHUE
v.
LOUISVILLE, H. & ST. L. RY.
CO.

Court of Appeals of Kentucky.

March 18, 1919


Appeal from Circuit Court, Jefferson County, Common Pleas Branch, First Division.

Action by Jerry Donahue against the Louisville, Henderson & St. Louis Railway Company. From a directed verdict for the defendant, plaintiff appeals. Judgment affirmed.

Elmer C. Underwood, of Louisville, for appellant.

Helm & Helm, of Louisville, for appellee.

SAMPSON, J.

The Louisville, Henderson & St. Louis Railway Company operates an interstate railroad, and was at the times complained of and is now engaged in interstate commerce. Appellant Jerry Donahue was employed by said railway company as one of a crew of trackmen engaged in maintaining the tracks in the Louisville yards of said company. On September 21, 1916, appellant Donahue and a colored man named Logsdon were directed by the foreman of the gang to take a spike maul and a chisel Trail cutter, and go to a certain pile of Trails in the yards of the company and there cut an ordinary steel railroad rail into two parts. This work was accomplished by placing the chisel on the steel rail at the point where it was marked to be cut, and then by striking the chisel with the maul. The colored man held the chisel on the rail, while appellant Donahue struck the top of the chisel with the spike maul. The chisel was an old one, that had been long in use, and the top or head of it had been battered and "mushroomed" by heavy strokes from the spike maul. The spike maul likewise was old and battered. In the course of the work a sliver or steel splinter flew from the head of the chisel and struck appellant Donahue in the left eye, inflicting a more or less painful injury, and impairing the sight of the eye in part. From this injury Donahue lost only a few days' work.

About a month later Donahue, with his gang, were engaged in repairing a switch in one of the yards. The foreman directed Donahue to take the clawbar, a steel bar about four or five feet long, with a claw on one end so arranged as to pull spikes from cross-ties, and place the claw thereof over the head of a steel spike, which had been driven into the bolt hole of the rail and splice, in order to drift the rail into position, and hold the bar in such position as to allow a fellow workman to strike the heel thereof with the spike maul, and thus drive the spike from the hole in the steel rail. While appellant Donahue was thus holding the clawbar and the fellow workman was striking the heel as aforesaid, a sliver of steel flew from the heel of the clawbar and struck appellant in the right eye, destroying the sight thereof. On the 18th day of January, 1917, Donahue instituted this action in the Jefferson circuit court under the federal Employers' Liability Act (Act April 22, 1908, c. 149, 35 Stat. 65 [U. S. Comp. St. §§ 8657-8665]), in two paragraphs, seeking to recover of appellee, railway company, damage for each of said injuries.

After a general demurrer to the petition had been overruled, and other preliminary motions passed upon, defendant filed an answer traversing the allegations of the petition, and in a second paragraph averred that plaintiff Donahue was guilty of such contributory negligence as would bar his right of recovery. By the third paragraph the answer alleged that plaintiff Donahue--

"in entering and remaining in the service of the defendant assumed certain risks and dangers incident to his work, and by his contract of service with the defendant he assumed all the ordinary risks and dangers incident to his employment, among which was the risk of injury set up in the petition."

The affirmative allegations of the answer were controverted by reply. The case came on for trial before a jury, and at the conclusion of plaintiff's evidence counsel for defendant company moved the court to peremptorily instruct the jury to find and return a verdict for it, which motion was sustained by the court, and plaintiff's action dismissed, and of this he complains upon this appeal.

The railroad company is an interstate common carrier, and was engaged in interstate commerce at the time of the two injuries of which Donahue complains, and Donahue is admitted to have been in its employ at each of said times, and it may be conceded was engaged in interstate commerce. Appellee company insists that the clawbar, chisel, and spike maul employed by appellant Donahue and his fellow workman, at the times of which he complains of injury, are common tools, governed by what is generally known as the "simple tool" rule, and that the master did not owe to Donahue the duty of inspecting the tools for defects, but that such duty rested upon Donahue as the workman having the tools in charge. To this contention appellant Donahue responds by conceding the tools employed to come within the rule stated, but asserts the most that could be said against appellant is that he was guilty of contributory negligence in continuing to use the tools which he knew to be in a defective condition, and that by the federal act, under which this suit is prosecuted, contributory negligence is not a bar, but may be pleaded in mitigation of damages only, and the trial court erred to appellant's prejudice in sustaining the motion for peremptory instruction. Appellee company does not accede to this insistence, and attempts to avoid it by saying that the act of appellant Donahue...

To continue reading

Request your trial
12 practice notes
  • DeMoss v. Great N. Ry. Co., No. 6464.
    • United States
    • United States State Supreme Court of North Dakota
    • April 8, 1937
    ...be said [272 N.W. 510]to be guilty of contributory negligence in proceeding with the work. See Donahue v. Louisville, H. & St. L. Ry. Co., 183 Ky. 608, 210 S.W. 491, 493. [5] Whether the employee assumed the risk is to be determined by the construction of the statute under the rules laid do......
  • Luton Min. Co. v. Louisville & N.R. Co.
    • United States
    • Court of Appeals of Kentucky
    • December 16, 1938
    ...statute. Louisville, H. & St. L. Railroad Company v. Wright, 170 Ky. 230, 185 S.W. 861; Donahue v. L., H. & St. L. Railroad Company, 183 Ky. 608, 210 S.W. 491. However, we cannot agree so readily with appellant's contention that Jagoe must have been held to have assumed the risk incident to......
  • Blackaby v. Louisville & N.R. Co.
    • United States
    • Court of Appeals of Kentucky
    • March 2, 1926
    ...221 S.W. 552, 188 Ky. 204; Hoskins v. Louisville & N. R. R. Co., 181 S.W. 352, 167 Ky. 665; Donahue v. Louisville H. & St. L. Ry. Co., 210 S.W. 491, 183 Ky. 608; McGaughey v. Hines, 235 S.W. 742, 193 Ky. 312; Turkey Foot Lumber Co. v. Wilson, 206 S.W. 14, 182 Ky. 42; Ohio Valley Ry. Co. v. ......
  • Cincinnati, N.O. & T.P. Ry. Co. v. Burton
    • United States
    • Court of Appeals of Kentucky
    • April 18, 1919
    ...pick, Turkey Foot Lum. Co. v. Wilson, 182 Ky. 42, 206 S.W. 14; spike maul and chisel T-rail cutter, Donahue v. L., H. & St. L. Ry. Co., 183 Ky. 608, 210 S.W. 491. In the cases below cited, various kinds of hammers, backing hammer, riveting hammer, hand hammer, sledge hammer, snap hammer, bo......
  • Request a trial to view additional results
12 cases
  • DeMoss v. Great N. Ry. Co., No. 6464.
    • United States
    • United States State Supreme Court of North Dakota
    • April 8, 1937
    ...be said [272 N.W. 510]to be guilty of contributory negligence in proceeding with the work. See Donahue v. Louisville, H. & St. L. Ry. Co., 183 Ky. 608, 210 S.W. 491, 493. [5] Whether the employee assumed the risk is to be determined by the construction of the statute under the rules laid do......
  • Luton Min. Co. v. Louisville & N.R. Co.
    • United States
    • Court of Appeals of Kentucky
    • December 16, 1938
    ...statute. Louisville, H. & St. L. Railroad Company v. Wright, 170 Ky. 230, 185 S.W. 861; Donahue v. L., H. & St. L. Railroad Company, 183 Ky. 608, 210 S.W. 491. However, we cannot agree so readily with appellant's contention that Jagoe must have been held to have assumed the risk incident to......
  • Blackaby v. Louisville & N.R. Co.
    • United States
    • Court of Appeals of Kentucky
    • March 2, 1926
    ...221 S.W. 552, 188 Ky. 204; Hoskins v. Louisville & N. R. R. Co., 181 S.W. 352, 167 Ky. 665; Donahue v. Louisville H. & St. L. Ry. Co., 210 S.W. 491, 183 Ky. 608; McGaughey v. Hines, 235 S.W. 742, 193 Ky. 312; Turkey Foot Lumber Co. v. Wilson, 206 S.W. 14, 182 Ky. 42; Ohio Valley Ry. Co. v. ......
  • Cincinnati, N.O. & T.P. Ry. Co. v. Burton
    • United States
    • Court of Appeals of Kentucky
    • April 18, 1919
    ...pick, Turkey Foot Lum. Co. v. Wilson, 182 Ky. 42, 206 S.W. 14; spike maul and chisel T-rail cutter, Donahue v. L., H. & St. L. Ry. Co., 183 Ky. 608, 210 S.W. 491. In the cases below cited, various kinds of hammers, backing hammer, riveting hammer, hand hammer, sledge hammer, snap hammer, bo......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT