Franklin's Adm'r v. Louisville & N.R. Co.

• Decision Date: 30 October 1913
• Parties: FRANKLIN'S ADM'R v. LOUISVILLE & N. R. CO.
• Court: Kentucky Court of Appeals

160 S.W. 162

155 Ky. 594

FRANKLIN'S ADM'R v. LOUISVILLE & N. R. CO.

Court of Appeals of Kentucky.

October 30, 1913

Appeal from Circuit Court, Hopkins County.

Action by A. R. Franklin's Administrator against the Louisville & Nashville Railroad Company. From a judgment sustaining a demurrer to the petition, plaintiff appeals. Reversed and remanded.

Gibson & Kincheloe and Gordon & Gordon & Cox, all of Madisonville for appellant.

C. J Waddill, of Madisonville, and Fred P. Caldwell, C. H Moorman, and Benjamin D. Warfield, all of Louisville, for appellee.

CARROLL J.

A. R Franklin, an employé of the Rose Creek Coal Company, was killed while engaged at work on a partially loaded coal car at the coal tipple of the coal company by being thrown from the car. The accident was due to the fact that an empty car going at rapid speed down an incline track struck with force the car in which Franklin was at work. In this action to recover damages for his death the petition charged: That the mine of the Rose Creek Coal Company was situated on a spur track connected with the line of the appellee railroad company. That the spur track was constructed and owned by the coal company. That when coal cars were needed by the coal company they were placed by the railroad company on this spur track and thence run to the mine or the place where they were needed by employés of the coal company; the cars rolling of their own momentum from the place where they were put by the railroad company down the incline spur track to the point where they were used by the coal company. It was further averred in the petition "that one of said cars owned, operated, and maintained by defendant, and so set in by the defendant upon said switch of said Rose Creek Coal Company to be loaded with coal on or about said date was, at the time same was so set in upon said switch and for a long time theretofore had been, negligently caused and permitted by defendant to be and remain in a dangerous, unsafe, and defective condition, and the hand brake on said car was negligently and improperly rigged by defendant and was unsafe and dangerous and was and had been for several days theretofore, by the defendant caused and permitted to be and remain defective and out of order, and out of repair, so that the movements and speed of said car when being moved singly upon the track could not be controlled by means of said brake, all of which facts said defendant and its agents and servants knew, or by the exercise of ordinary care could have known, at the time said car was so supplied and furnished to said Rose Creek Coal Company, and the defendant was guilty of gross negligence in supplying and furnishing said car in said condition. Thereafter, on said November 12, 1909, the agents and servants and employés of the said Rose Creek Coal Company acting in a careful and prudent manner and in the ordinary discharge of their duties to their said employer, attempted to move said defective brakes car with said improper and defective brakes down said incline track to said coal tipple of said company to be loaded with coal for shipment over said defendant's railroad for market, when by reason of the condition and character of said car and said brakes hereinabove set out, the movements thereof could not be controlled by said agents and servants of said Rose Creek Coal Company, and said car, without fault on their part, was caused by its own momentum to run rapidly down said incline track to said coal tipple, where said car so in motion ran into and struck a partially loaded car of coal standing under said coal tipple, and the impact and concussion caused by said collision knocked or threw plaintiff's decedent, A. R. Franklin, who was then and there employed as a laborer by said Rose Creek Coal Company, off of said car and beneath the wheels thereof." To this petition a general demurrer was sustained, and thereupon an amended petition was filed charging "that the defective and dangerous condition of said car and of the brakes thereof was not known to decedent or to the agents or servants of the Rose Creek Coal Company who were engaged in moving said car, or any agent or servant of the Rose Creek Coal Company, nor could said dangerous and defective condition of said car have been discovered by any employé of the Rose Creek Coal Company, or by the decedent, by a casual or ordinary inspection, nor could said dangerous and defective condition of said car and the brakes thereof have been discovered by decedent or any agent or servant of the Rose Creek Coal Company by exercise of ordinary care; that the agents and servants of said Rose Creek Coal Company charged with the duty of moving said car, in the exercise of care, prudence, and diligence, made every effort to check and stop the movements of said car; that said car was caused to start immediately upon being uncoupled from the remaining cars, by reason of the inherently and imminently dangerous condition and character of its brakes, and that by reason of the defective and inherently and imminently dangerous condition of said brakes and said cars, they were unable to check, control, or stop the movements of said car, and that the movement of said car, started by its own weight, and moving by its own momentum, was the direct and proximate cause of the fatal injury to plaintiff's decedent." A demurrer was also sustained to this pleading, and, the plaintiff declining to plead further, his petition as amended was dismissed, and he appeals.

In disposing of the case we must accept as true the averments of the petition as amended. Accepting them as true, did the pleading state a cause of action? We think it did. It is true the car having the defective brake was left on the spur track by the railroad company to be taken charge of by employés of the coal company, and managed and operated by them from the place at which it was left to the place at which it was needed by the coal company. It is also true that the spur track was owned and controlled by the coal company, and, further, that no employé or person connected with the railroad company had anything to do with the movement of the car causing the collision between the time it was left on the spur track and the time of the collision. With these facts admitted, it is apparent that the liability of the railroad company, if any there be, consists in the fact that it placed the car, without a brake or with a defective brake, on the spur track when it knew, or by the exercise of ordinary care could have known, the defective condition of the brake, and with knowledge of the manner in which the car would be run from the place it was left to the place it was needed for use by the coal company.

In support of the ruling of the trial court, counsel for the railroad company rely chiefly on the case of Logan v Cincinnati, New Orleans & Texas Pacific Ry. Co., 139 Ky. 202, 129 S.W. 575. In that case, as it appears from the opinion, the Kentucky Barytes Company had a spur track running from the line of the Louisville & Atlantic Railroad Company to its mill, and it was the custom of the railway company to deliver cars consigned to the barytes company on this spur track at a point near the line of the railway. When the material in the cars so left on the spur track was needed by the barytes company, its employés pushed them to the place where it was used. The brake upon a car loaded with barytes placed on this spur track was in such a defective condition as to render it useless in controlling the movements of the car, and this was known to the railway company when it was set on the spur track. The servants of the railroad company, realizing the defective condition of the...