Helm v. Cincinnati, N.O. & T.P. Ry. Co.

• Decision Date: 03 December 1913
• Citation: 160 S.W. 945,156 Ky. 240
• Parties: HELM v. CINCINNATI, N. O. & T. P. RY. CO.
• Court: Kentucky Court of Appeals

160 S.W. 945

156 Ky. 240

HELM v. CINCINNATI, N. O. & T. P. RY. CO.

Court of Appeals of Kentucky.

December 3, 1913

Appeal from Circuit Court, Boyle County.

Action for personal injuries by G. T. Helm against the Cincinnati New Orleans & Texas Pacific Railway Company. Judgment for defendant; plaintiff appeals. Affirmed.

See also, 149 Ky. 340, 148 S.W. 25.

Emmet Puryear, Robert Harding, and J. W. Rawlings, all of Danville and O'Rear & Williams, of Frankfort, for appellant.

Chas H. Rodes and Nelson D. Rodes, both of Danville, and John Galvin, of Cincinnati, Ohio, for appellee.

MILLER J.

On April 3, 1911, the appellant, Helm, was severely injured while in the service of the appellee. Helm was employed as a special agent or detective by the appellee; his duties requiring him, among other things, to inspect the seals of cars, broken cars, and cars which had been broken into. At the time he received the injuries referred to, helm was engaged in examining the seals on the ends of two cars which were coupled together in the yard of the appellee's road in Danville. While examining the seals he was in between the two cars, with one foot on the brace rod on the end of one car, and the other foot On the brace at the end of the other car. While he was in this position a switching or yard crew "shunted" or dropped a car onto the side or house track, which was in front of appellee's depot, striking the two cars upon which appellant was standing, throwing him off, and breaking his arms and injuring him internally. He brought his action and recovered a verdict for $8,000 damages; but, upon an appeal to this court, that judgment was reversed on June 21, 1912, and remanded for a new trial consistent with the opinion of this court. See 149 Ky. 340, 148 S.W. 25, where the facts are set forth with more minuteness. The original action had been brought under the state law; and the effect of the opinion of this court was to direct the trial court to peremptorily instruct the jury to find for the defendant upon another trial, if the evidence was substantially the same. After the reversal Helm dismissed his original action, and instituted this action on August 30, 1912, under the act of Congress known as the federal Employers' Liability Act. Upon the trial of this action the circuit court, after hearing all the evidence for both parties, followed the former opinion, and peremptorily instructed the jury to find for the defendant; and from a judgment upon that verdict, Helm prosecutes this appeal.

It is insisted that the trial court erred in following the opinion of this court on the former appeal, for the three following reasons: (1) Because that opinion was rendered in a case brought under the common law of the state of Kentucky, while the right of action in the present suit is one arising under the federal Employers' Liability Act; (2) because the facts on the present trial of this case are materially different from the facts shown on the trial of the original action; and (3) that the violation of the rules and regulations of the railway company by its employes furnish a ground of liability against it.

1. It is true Helm bases his right to recover in this action on the federal Employers' Liability Act, while the original case was brought under the common law of the state of Kentucky. This vital question, however, presents itself: When does the federal Employers' Liability Act give an action for negligence? If the action is based simply upon negligence without any definition or limitation of that term as known and applied under the common law, then it is a familiar rule of construction that the term is to be given its ordinary significance as fixed by the common law. The action is given by the following language taken from section 1 of the federal Employers' Liability Act: "Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, that every common carrier by railroad while engaging in commerce between any of the several states or territories, or between any of the states and territories, or between the District of Columbia and any of the states or territories, or between the District of Columbia or any of the states or territories and any foreign nation or nations, shall be liable in damages to any person suffering injury while be is employed by such carrier in such commerce, or, in case of the death of such employé to his or her personal representative, for the benefit of the surviving widow or husband and children of such employé and, if none, then of such employés parents; and, if none, then of the next of kin dependent upon such employé for such injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employés of such carrier, or by reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves, or other equipment." Act April 22, 1908, c. 14&, 35 Stat. 65 (U. S. Comp. St. Supp. 1911, p. 1322). It will be observed, therefore, that the act of Congress creates a right of action only when there has been negligence upon the part of the railway company's employés to the injured employé, and when this negligence has caused the injury or death of the employé. The act of Congress does not undertake to define negligence and in no way limits the application of the common-law rule upon that subject; and, since there is no federal common law, it is the common law of the state where the accident occurred to which we must look in determining whether the acts complained of amount to negligence.

In Long v. Southern Ry. Co., 155 Ky. 289, 159 S.W. 781, we said: "While it is true that the Employers' Liability Act has abrogated the fellow-servant doctrine, and that the contributory negligence of the injured employé does not bar a recovery but simply diminishes the damages in proportion to the amount of negligence attributable to such employé yet it is still necessary to show that the injury resulted, in whole or in part, from the negligence of the officers, agents, or employés of the carrier, or by reason of some defect or insufficiency, due to its negligence, in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves, or other equipment." See, also, St. L., I. M. & S. Ry. Co. v. McWhirter, Adm'x, 155 Ky. 304, 159 S.W. 796.

In considering the question whether there was, in this case, negligence upon the part of the company, we must therefore apply the principles announced in the opinion upon the original appeal, unless there be: (1) Some change in the rule provided and required by the federal Employers' Liability Act; or (2) a material change in the facts upon this trial when compared with the facts shown upon the original trial.

To meet the first difficulty above suggested, appellant insists that, the Employers' Liability Act having abrogated the fellow-servant rule and the doctrine of contributory negligence in so far as it could bar a recovery, the case should have been submitted, to the jury, because the opinion in the original case directed a peremptory instruction upon the ground that the evidence showed that Helm had been guilty of contributory negligence. If it be true that the opinion directing a peremptory instruction for the defendant in the original appeal was rested upon the ground of Helm's contributory negligence, and the question of negligence upon the part of the company has been made out in this case, then the case should have gone to the jury; but, if the opinion in the original appeal was rested merely upon the fact that Helm had failed to show negligence upon the part of the company, and the facts in that respect upon this appeal are not materially different from the facts of the original appeal, then the circuit judge was right in following the opinion upon the former appeal and giving the instruction to find for the defendant, as he did.

In C., N. O. & T. P. Ry. Co. v. Harrod's Adm'r, 132 Ky. 452, 115 S.W. 701, we said: "Negligence is a...