Fitzpatrick v. Louisville & N.R. Co.

• Decision Date: 20 September 1911
• Citation: 144 Ky. 465,139 S.W. 739
• Parties: FITZPATRICK v. LOUISVILLE & N. R. CO.
• Court: Kentucky Court of Appeals

139 S.W. 739

144 Ky. 465

FITZPATRICK v. LOUISVILLE & N. R. CO.

Court of Appeals of Kentucky.

September 20, 1911

Appeal from Circuit Court, Fayette County.

Action by W. H. Fitzpatrick against the Louisville & Nashville Railroad Company. From a judgment for defendant, plaintiff appeals. Affirmed.

James H. Minogue and Kimball & Hunter, for appellant.

Shelby & Shelby and Benjamin D. Warfield, for appellee.

MILLER J.

On April 14, 1908, the appellant and three other section hands under the superintendence of McCarty, the section foreman had gone upon a hand car to Kenney's Station, on the defendant's road, between Paris and Lexington. About 4 o'clock in the afternoon the crew of five men left Kenney's Station upon the hand car, going southwardly towards Lexington. When they reached Hutchison's Station they stopped and waited a short time on account of rain. While at that point, Tutt, one of the crew, brought and placed upon the car a gunny sack containing two or three bushels of coal. He placed the sack upright on the side near the handle bar, slightly toward the Lexington end of the car. Shortly thereafter the crew continued its journey southwardly; the appellant working the handle bar, and riding backward. They were going at the rate of eight or nine miles an hour; and, when they had gone about one mile from Hutchison's Station, the appellant fell or was thrown backward from the car upon his back, and on the track in front of the car, which ran onto his body, doubling up his legs against his chest, and inflicting serious and permanent injuries. He brought this suit for damages for the injury and upon the conclusion of his testimony the court peremptorily instructed the jury to find for the defendant.

According to appellant's theory, the defendant was guilty of negligence in so loading the hand car with the sack of coal as to make the car dangerous; and, the sack having fallen over, it was struck by the handle bar operated by appellant with such violence as to knock his hands loose from the handle bar and throw him backward off the car as above indicated. It had been raining nearly all day, and, according to appellant's witness Meyers, one of the crew, rain was falling at the time of the accident. Appellee contends that the handle bar had become thoroughly wet and soaked to such a degree that appellant allowed his hands to slip from it, and was in that way thrown from the car. Appellant claims that McCarty, the foreman, assented to Tutt's placing the sack of coal upon the car, but the evidence fails to show that he did anything more than remain silent with respect to that act on Tutt's part.

The appellant and John Meyers, one of the crew, were the only witnesses who testified as to the accident. The coal sack belonged to Tutt and was placed on the floor beyond the reach of the handle bars, and nearly opposite the brake. It in no way interfered with the working of the lever on account of the casing which surrounds it. The lever was operated by four men, two of whom worked facing forward, and two facing backward. No one saw the sack of coal fall over, or the handle bar strike it. Meyers was riding on the rear of the car, facing the front, and was facing appellant and the sack of coal. Moreover, Meyers, who had hold of the opposite handle bar from the appellant, felt no jerk or jar until after appellant had fallen from the car; and, both handle bars being connected with the same lever, it is argued that the sack could not have struck the handle bar that appellant had hold of, or have been struck by it without the jar from it being felt by Myers. Appellant says the first he knew of the sack of coal falling over was his feeling it on his feet, but that it was so sudden he could give no adequate explanation of the accident.

Assuming however, that the appellant's version of the accident is correct, we are of opinion that the court properly sustained appellee's motion for a peremptory instruction in its favor. The only negligence claimed by appellant was in allowing the sack of coal to be placed upon the hand car. It was placed in plain view of all the men on the hand car, and in a position where it came in contact with none of the mechanism of the car. It did not crowd the car. It did not take up an unusual amount of room, and was placed in a position against the lever casing where it in no way interfered with the operation of the car. Appellant relies principally upon Ward v. L. & N. R. R. Co., 65 S.W. 2, 23 Ky. Law Rep. 1326, for a reversal. In that case the appellant, as a section hand, had been at work with others under the section foreman clearing up a wreck. At the close of the day the foreman directed the men to pile upon the hand car some remnants of lumber and splinters, saying they would make a fine lot of kindling. The foreman then directed the men to get on the car and go home. They did so, but before reaching their destination a piece of the wood caught in the cogs of the hand car and threw it from the track, breaking Ward's leg. In that case, as in this, the trial court peremptorily instructed for the defendant; and, in reversing the ruling in the Ward Case, this court said: "The section foreman had charge of the car and was in command of the men. It was his duty before starting his car to see that it was in a safe condition to be operated. The short pieces of kindling which were piled above the hole in which the...