Gibson v. Womack

• Decision Date: 01 March 1927
• Citation: 218 Ky. 626,291 S.W. 1021
• Parties: GIBSON ET AL. v. WOMACK.
• Court: Kentucky Court of Appeals

291 S.W. 1021

218 Ky. 626

GIBSON ET AL. v. WOMACK.

Court of Appeals of Kentucky.

March 1, 1927

Appeal from Circuit Court, Graves County.

Action by W. A. Womack against T. H. Gibson and another, partners engaged in business under the firm name of Gibson &amp Humphreys. Judgment for plaintiff, and defendants appeal. Reversed.

Robbins & Robbins and Lucian R. Smith, all of Mayfield, for appellants.

W. J Webb, of Mayfield, for appellee.

LOGAN J.

The appellants T H. Gibson and G. G. Humphreys were partners engaged in the contracting business under the firm name of Gibson & Humphreys. In the year 1924 they were engaged in road construction work in the state of West Virginia near Hinton. They were constructing a public highway for the state; the highway running parallel with the line of railroad belonging to the Chesapeake & Ohio Railway Company. On the north side of the railroad track is a well-nigh perpendicular cliff from 40 to 75 feet high, and the slope above the cliff continues to the top of the mountain. The highway under construction was on top of the cliff above the railroad, and was 20 feet wide. It was necessary in the construction of the highway to blast through the rock formation, and it is not denied that blasting was necessary. The blasting was done by the appellants on the right of way furnished by the state. On the morning of October 8, 1924, between the hours of 9 and 10 a. m., a blast was shot off, and 75 sticks of dynamite were used. There is no complaint that the charge was unreasonable or that it was not shot off by a competent, careful, and prudent man. Gibson, who had charge of the blasting, was a man experienced in that line. The broken stones shot down by the blast were removed, except some of the larger stones that it was necessary to break again. Between 4 and 4:30 p. m., some of these larger stones shot down by the blast in the morning were broken up by another blast, when 8 sticks of dynamite were used. No rock or débris was thrown over the cliff onto the railroad right of way or track by the explosion of these two blasts at the time of the explosion. By about 5:30 p. m. appellants had removed from the highway all the loose material, and the workmen quit work, and went to the camp provided for them about 600 yards from the place of the blasting. In order to get down to the railroad, it was necessary to go about 600 feet or to climb down the cliff. It may have been possible to climb down the side of the cliff in the daytime at some points, but the witnesses say that it would not have been safe to try it in the nighttime.

The Chesapeake & Ohio train westward bound, on which appellee was engineer, due to leave Hinton at 7:10 p. m., left three or four minutes late. When it reached Tug Creek about a mile and a half west of Hinton, it ran into an obstruction of broken stones, and probably of broken rails and ties, which caused the engine to turn over. Appellee was seriously injured by being scalded, and was in the hospital for several weeks, and was unable to work for many months. The fireman was killed. The evidence shows that one big rock weighing probably 20 tons came from the mountainside across the highway over the cliff, and struck between the two rails of the west-bound track, and then bounded across to the east-bound track, where it came to rest. There were six or eight rocks weighing from 600 pounds to 1,000 pounds each on the west-bound track and several smaller boulders. These stones were caused by a slide from the mountain side north of the highway commencing about 4 feet above the grade of the highway, and extending upward about 22 feet. The slide covered up the steam shovel on the highway which was used by appellants, and the stones mentioned above went over the cliff onto the railroad track.

On the 8th day of October, 1925, appellee filed his petition in the circuit court of Graves county, Ky. in which he alleged that the appellants, "through their agents, servants, and employees, negligently and carelessly caused and permitted a great quantity of rock and dirt to slide from the place where they were blasting down onto and on the side track of the Chesapeake & Ohio Railway Company, and negligently and carelessly failed to guard said obstruction, or to warn any one of its existence, with the result that a railroad train of the Chesapeake & Ohio Railway Company, on which the plaintiff was an engineer, ran into the said pile of rock and dirt during the nighttime."

The basis of the cause of action as set out in the petition is that appellants negligently and carelessly caused and permitted the rock to slide onto the railroad track, and further that appellants negligently and carelessly failed to guard said obstruction, or to warn any one of its existence. This is denied by the answer. The answer also contains a plea of limitation, and that will be first disposed of. There was a plea by amended answer of contributory negligence.

As such causes of action as this must be instituted within one year from the date of its occurrence, and as the injury occurred on the 8th day of October, 1924, and the suit was not instituted until the 8th day of October, 1925, the cause of action was not brought within one year under the laws of the state of Kentucky, but it is insisted that, as all the parties lived in West Virginia at the time of the accident, the laws of that state govern as to the limitation of the action. It is proved by the deposition of a lawyer in West Virginia that under the laws of that state such an action as this must be brought within one year from the date of the injury, and that the word "year" means a calendar year, and that by the laws of West Virginia a calendar year means a year from the date of the injury, excluding the day on which the injury occurred. Section 2542, Ky. Stats., provides that, when a cause of action has arisen in another state between residents of such state, an action cannot be maintained in this state on the cause of action, if the action is barred in the state where the injury occurred. This court has held that, where the cause of action is not barred in the state where the action originated, and all of the parties were residents of that state, it is not barred in this state in a suit between the same parties. Smith v. Baltimore & Ohio Railway Co., 157 Ky. 113, 162 S.W. 564; Labatt, etc., v. Smith, etc., 83 Ky. 599; John Shillito Co. v. Richardson, 102 Ky. 51, 42 S.W. 847, 19 Ky. Law Rep. 1020.

We find no evidence in the record which shows that appellee was guilty of contributory negligence, and that disposes of another plea of appellants.

The main question in this case is whether appellee can recover at all under the evidence presented by this record. If the evidence did not make out a case against appellants, the court should have sustained the motion of appellants for a peremptory instruction. Appellants insist that there should have been evidence showing that they were guilty of negligence in the blasting upon the highway, which negligence was the proximate cause of the injury, before the case could be submitted to the jury. On the other hand, appellee insists that if, as a result of the blasting, the rock and dirt slid onto the railroad track, although without negligence in the method of operation on the part of appellants, and the appellants failed to exercise ordinary care to warn approaching trains of the obstruction on the track, and that their failure to exercise ordinary care in this respect was the proximate cause of the injury, the case should have been submitted to the jury. We find a sharp conflict between counsel over this question. Counsel for appellee rely upon the cases of Langshorne v. Wilson, 91 S.W. 254, 28 Ky. Law Rep. 1181; Langhorne v. Turman, 141 Ky. 809 133 S.W. 1008, 34 L.R.A. (N. S.) 211, and L. & N. R. R. Co. v. Smith's Adm'r, 203 Ky. 513, 263 S.W. 29, 35 A.L.R. 1238. An examination of these cases discloses that the opinion in each of them was based upon the idea that the throwing of rocks or other physical objects upon the lands of another was a direct trespass, and the one doing the blasting was held responsible for any injury resulting, regardless of whether the blasting was done negligently or with the utmost care. The question is whether the same rule applies to consequential injuries. In this case there had been no blasting for about three hours before the wreck, and about two hours before the wreck appellants made a careful examination of the premises to discover whether there was any evidence of loose rocks which might slide on the railroad, and found none. The slide occurred, not as the immediate result of the blasting, if it was caused by the blasting, but followed some hours thereafter. Counsel for appellants insist that under such circumstances the rule announced in the cases above cited prevails. He cites 11 R.C.L. § 27, p. 673, as the law governing the throwing of rocks and débris on the premises of another which constitutes a direct trespass. That section in part is as...