Hines v. Cox

• Decision Date: 21 June 1921
• Citation: 192 Ky. 94,232 S.W. 373
• Parties: HINES, DIRECTOR GENERAL OF RAILROADS, v. COX.
• Court: Kentucky Court of Appeals

232 S.W. 373

192 Ky. 94

HINES, DIRECTOR GENERAL OF RAILROADS, v. COX.

Court of Appeals of Kentucky.

June 21, 1921

Appeal from Circuit Court, Bell County.

Action by George Cox against Walker D. Hines, Director General of Railroads. Judgment for plaintiff, and defendant appeals. Reversed and remanded, with directions.

B. D Warfield, of Louisville, and William Low, of Pineville, for appellant.

N. J Weller, of Pineville, for appellee.

CLAY J.

Claiming that, while engaged in lifting steel rails for the Louisville & Nashville Railroad Company, he suffered a hernia, which was due to the negligence of the company in failing to furnish a sufficient force to do the work, plaintiff, George Cox brought suit against the Director General of Railroads to recover damages. From a verdict and judgment in his favor for $1,000, the defendant appeals.

The facts are as follows: Plaintiff was 50 years of age and was working for the company as a section hand. Though he had worked in that capacity at various intervals for a number of years, he had been employed only a few days when the accident occurred. On the morning of the day the accident occurred, the foreman directed the section crew to load on push cars a quantity of steel rails that were lying on the ground strung along the track. After the cars were loaded, the men pushed them to Colmar, a distance of about 2 miles, where the rails were unloaded. The crew consisted of eight men, besides the foreman. Seven men were engaged in loading the rails and shoving the trucks, four men being at one end, and three, including the plaintiff, being at the other end. The plaintiff took his position voluntarily, because it was impossible to divide the men equally. The eighth man was out flagging. The foreman was at Colmar most of the time, where he assisted in unloading and measuring the rails. Plaintiff weighed about 160 pounds. He knew nothing of the length or the width of the rails. He says that some of the rails were partly buried, from 2 to 3 feet below the grade of the railroad track, and that the beds of the trucks on which the rails were laid were about 2 feet above the track. For a portion of the way they had to carry the rails up hill. It required stiff lifting to get the rails up, and several times he lifted all he could pack and go along with it. While he worked between Cross and Colmar, he felt some effects from the lifting, but could not say what time in the day it was. When he commenced hurting, he experienced a keen pain in his groin and in his right side. He was engaged in lifting when he experienced the pain, and the pain continued to grow worse, but he finished his day's work. Later on it developed that he was suffering from a hernia. The foreman was not present at the time he was injured, and the subforeman assisted the other men in doing the work. Neither he nor any of the men complained of the fact that the work was too heavy, nor did he complain to those present of the injury which he had received.

John Hendrickson, who was a member of the crew and acted as assistant foreman in the absence of the foreman, had worked for the Louisville & Nashville railroad for 15 or 16 years. The rails they were handling were old steel rails, some being 33 feet and others less than that. New 33-foot rails weigh 770 pounds, but old rails weigh less. In his opinion the seven men he had at work were not sufficient to handle the rails with safety. There should have been eight or ten for safety. He could hardly say what was the usual force for doing that work. Sometimes they used more and sometimes less force. He had seen rails loaded with less force. Hamp Peace, a member of the crew, testified that in lifting the rails, four at one end and three at the other, it required pretty stiff lifting and was about all that he could go with. In describing the character of the work, Will Bustle, another member of the crew, said:

"It took hard lifting all around. It is straining work. Any one knows that."

He further stated that pushing the cars after the rails were loaded was pretty heavy work.

It is the settled rule in this state that a servant is the best judge of his own physical...