Gregory's Adm'x v. Director General of Railroads

• Decision Date: 19 May 1922
• Parties: GREGORY'S ADM'X v. DIRECTOR GENERAL OF RAILROADS.
• Court: Kentucky Court of Appeals

242 S.W. 373

195 Ky. 289

GREGORY'S ADM'X v. DIRECTOR GENERAL OF RAILROADS.

Court of Appeals of Kentucky.

May 19, 1922

Appeal from Circuit Court, Whitley County.

Action by T. G. Gregory's Administratrix against the Director General of Railroads. Judgment for defendant on directed verdict, and plaintiff appeals. Affirmed.

Stephens & Steely and Pope & Browning, all of Williamsburg, and E. F Baker, of Pineville, for appellant.

Tye &amp Siler, of Williamsburg, and Benjamin D. Warfield, of Louisville, for appellee.

THOMAS J.

At the time of his death, which occurred at about the hour of 4 a m., standard time, August 17, 1918, T. G. Gregory was and had been for something like 15 years a brakeman in the employ of the Louisville & Nashville Railroad Company, but at that time the railroad was being operated by the Director General of Railroads under the Federal Control Act (U. S. Comp. St 1918, U.S. Comp. St. Ann. Supp. 1919, §§ 3115 3/4a-3115 3/4p). He was a member of a crew operating a freight train running from Corbin, Ky. to Norton, Va., and both the train and the crew were engaged in interstate commerce. The train, which consisted of some 34 or 35 freight cars, arrived in the yards of Pineville, Ky. about 50 minutes before decedent was killed. The engine was uncoupled from the train, and it, with a portion of the crew, not including decedent, went out upon a spur track, a distance of some 5 or 6 miles, to Straight Creek Coal Mines, where it did some switching, and came back with five or six empty cars a short while before the accident, and about the same time before the arrival of passenger train No. 21 going south. For some distance north of the Pineville yards the track is doubled, but the freight train, of whose crew decedent was a member, had passed the point where the two tracks merge. When the engine returned from off the spur track it pushed the cars it brought therefrom against the part of the full train, which had been left standing, and then backed the whole train, thus increased, so as to run it on to the north-bound double track and get it out of the way of the approaching passenger train. Decedent was left at the rear of the train, where he remained so far as the evidence discloses, and about the time it started backwards, for the purpose stated, he was standing some 500 or 600 feet north from the caboose near the switch for the track which it was to take when the conductor saw him alive for the last time. He had a lantern on his arm, and the conductor, who was introduced by plaintiff, testified that:

"I told him I was going to back in for 21, and his word to me when he understood was 'Shake, rattle, and roll.' He would call and tell me that, and that is the last word I heard him say, and then the caboose was backing up, and that cut the view off between him and me, and I stepped over to the telegraph side."

That occurred right beside the block office, which was located north of the freight depot, and immediately thereafter the conductor crossed the track directly in front of the backing train and went into that office, which was being operated at the time by a man by the name of Vermillion, but who at the time of the trial had ceased to work for the railroad company. Vermillion at the time was lying on a table, and did not see either the conductor or the train, though he states, which will be accepted as true for the purposes of this case, that he heard both. His testimony as to what occurred between the conductor and the deceased just before the former came into his office, as shown in the record, was:

"Q. 38. Did you hear him [the conductor] give to the deceased any call, order, or direction immediately before the backing in of that train? A. Well, I heard Mr. Yonce [conductor] call to this man [supposed to be deceased]- [242 S.W. 374] --I don't know that it was just at this time, but I know he did call to him. Q. 39. What did he say to him? A. Well, he told him to ride the rear of the caboose; that he was backing in for 21, and to ride the rear of the cab and to turn the markers. Q. 40. Did you hear Mr. Gregory answer the conductor? A. Yes, sir; somebody answered him from down toward the tank."

The witness further testified that from the noise the train made in passing his office, although he did not see it, it was running, according to his opinion, from 10 to 15 miles per hour. The conductor testified that it was running only about 3 or 4 miles per hour, while a citizen of the locality, introduced by plaintiff, testified that it was running about 40 miles per hour, and perhaps faster than that, when the engine and cars that were procured from the spur track came in contact with the full train which had been left standing. It is admitted, however, that this witness was evidently mistaken, since, according to the testimony of the conductor, if that had happened the services of a wrecking train would have been needed, Some 10 or 15 minutes after the conductor last saw the deceased and after the passenger train had arrived he was notified that there was the dead body of a man near the tank, which, as we gather from the record was close to the point where the double tracks came together. Several persons went to the scene, including the conductor, and their testimony as to the surroundings and the condition of the body are practically the same. They state that the head was severed from the body, and it was laying between the rails some 8 or 10 feet south from a small hole in the ground which, perhaps, had been made from the washing of water from the tank. The body was on the outside of the rails in that hole some 8 or 10 feet north of where the head was found, and the ground clearly indicated that the body had been dragged or rolled. At the place near the track and immediately opposite to where the head was found there was lying upon the ground decedent's pipe and his sack of tobacco, his lantern and a fuse. There was no blood on either the rear or front wheels of the caboose, which at that time was moving backwards, nor was there any on the wheels of the next car, but it did appear upon the rear wheels of the third car, though the wheels of the second car from the caboose, according to the testimony of some of the witnesses, presented a greasy appearance.

This action, filed by the widow as administratrix under the federal Employers' Liability Act (U. S. Comp. St. §§ 8657-8665), seeks to recover the pecuniary value of the loss of decedent's life to his dependents, consisting of herself and three infant children. It was alleged that defendant was negligent in the management and operation of the train and in failing to maintain its yards where deceased had to work in a reasonably safe condition. More specifically, it is insisted, under the concrete facts proven: (a) That the agents and servants of defendant in charge of the train, other than the deceased, ran it back at an excessive and grossly negligent rate of speed; (b) that they failed to couple up the train when the engine and cars went back against it and that the 34 or 35 cars composing the train when it first pulled into the yards was making a flying switch, which has been frequently denounced as a greatly negligent act; (c) that some of the rules of the company, which were introduced, were violated; and (d) that it was negligence to maintain the hole near the tank where the body of the deceased was found. All negligence was denied in the answer, and there was a plea of contributory negligence and assumed risk, the first of which, of course, under the federal statute, went only in mitigation of damages. Appropriate pleadings made the issues, and at the close of plaintiff's testimony a motion made by defendant for a directed verdict in his favor was sustained, and a verdict returned accordingly, upon which judgment was rendered, which the court declined to set aside on a motion for a new trial, and plaintiff has appealed.

It is the theory of plaintiff's counsel that deceased, at the time he fell between the cars, resulting in his tragic death which evidently occurred in that manner, as demonstrated by the proven facts, was endeavoring to catch the train so as to discharge his duties by turning the markers at the rear end of the caboose so as to indicate safety instead of danger to the incoming passenger train; that in so doing he was caused to fall, either on account of the excessive and dangerous speed of the train, or because of stumbling into the hole where his body was found, or perhaps both, and that either one of which proves actionable negligence on the part of the defendant. If the accident occurred in the manner surmised by counsel, or if the evidence was of such a character as to leave no reasonable room for any other conclusion by the jury, then the court was in error in sustaining the motion for a directed verdict. But, unfortunately for plaintiff and the others for whose benefit she sues, this court, following the general rule upon the subject, has consistently held that in...