Hines v. Gaines

• Decision Date: 24 June 1921
• Citation: 232 S.W. 624,192 Ky. 198
• Parties: HINES, DIRECTOR GENERAL OF RAILROADS, v. GAINES.
• Court: Kentucky Court of Appeals

232 S.W. 624

192 Ky. 198

HINES, DIRECTOR GENERAL OF RAILROADS, v. GAINES.

Court of Appeals of Kentucky.

June 24, 1921

Appeal from Circuit Court, Hart County.

Action by Mit Gaines against Walker D. Hines, successor of William G. McAdoo, Director General of Railroads. Judgment for plaintiff, and defendant appeals. Reversed, with directions.

Benj. D. Warfield, of Louisville, Sims, Rodes & Sims, of Bowling Green, and Watkins & Carden, of Munfordville, for appellant.

Charles Carroll and M. T. Moran, both of Louisville, and Larrimore &amp Wheeler, of Munfordville, for appellee.

TURNER C.

Appellee was reared and lived with his mother and father at their home in Hart county, Ky. until the year 1908. At that time he was 24 years of age, and went to the state of Alabama to work for the Louisville & Nashville Railroad. He remained in Alabama until June, 1918, at which time, while riding on a freight train, he was either knocked or kicked therefrom, or fell therefrom, between the cars, which ran over his legs and necessitated their amputation.

This is an action instituted in the Hart circuit court of this state by him for damages resulting from such injury, wherein he alleges, in substance that while so riding on the freight train in Alabama he was either kicked or knocked therefrom by a brakeman assisting in the operation of the freight train, and that his injuries resulted therefrom. The answer controverted the material parts of the petition, and, in addition, relied upon the alleged contributory negligence of the defendant. On a trial a verdict was returned for the plaintiff for $6,000, upon which judgment was entered, and, the defendant's motion for a new trial having been overruled, he has appealed.

The original petition alleged that the plaintiff was at the time and had been continuously for 10 years, a resident of Hart county, Ky. and the defendant, before filing his answer to the merits, filed a special plea to the jurisdiction of the court, wherein it is alleged that the plaintiff did not reside in Hart county, Ky, and did not reside in said county on the day of the injury for which he sued, and had not so resided at any time in the past 15 years prior to bringing the action, and relied upon the act of Congress providing for the federal control of transportation systems (U. S. Comp. St. 1918, U.S. Comp. St. Ann. Supp. 1919, §§ 3115 3/4a-3115 3/4p), and providing that all such carriers, while under such federal control, should be subject to all liabilities as common carriers, whether arising under state or federal laws, or at common law, except in so far as might be inconsistent with the provisions of that act, or any act applicable to federal control, or with any order of the President. He then sets out two orders, General Order No. 18, dated April 9, 1918, and General Order No. 18a, dated April 18, 1918, issued by the Director General of Railroads under the authority of the President. Said two orders are as follows:

"Washington, April 9, 1918.

General Order No. 18.

Whereas, the act of Congress approved March 21, 1918, entitled 'An act to provide for the operation of transportation systems while under federal control,' provides (section 10) 'that carriers while under federal control shall be subject to all laws and liabilities as common carriers, whether arising under state or federal laws, or at common law, except in so far as may be inconsistent with the provisions of this act or with any order of the President, but no process, mesne or final, shall be levied against any property under such federal control'; and

Whereas, it appears that suits against the carriers for personal injuries, freight, and damage claims are being brought in states and jurisdictions far remote from the place where plaintiffs reside or where the cause of action arose, the effect thereof being that men operating the trains engaged in hauling war materials, troops, munitions, or supplies, are required to leave their trains and attend court as witnesses, and travel sometimes for hundreds of miles from their work, necessitating absence from their trains for days and sometimes a week or more, which practice is highly prejudicial to the just interests of the government and seriously interferes with the physical operation of the railroads, and the practice of suing in remote jurisdictions is not necessary for the protection of the rights or the just interests of plaintiffs:

It is therefore ordered, that all suits against carriers while under federal control must be brought in the county or district where the plaintiff resides, or in the county or district where the cause of action arose."

"April 18, 1918.

General Order No. 18a.

General Order No. 18, issued April 9, 1918, is hereby amended to read as follows:

'It is therefore ordered that all suits against carriers while under federal control must be brought in the county or district where the plaintiff resides at the time of the accrual of the cause of action or in the county or district where the cause of action accrued.' "

The purpose of these two orders, as stated in the first one, was to localize so far as might be practicable actions against carriers, so that witnesses in such actions, who might be engaged in either the transportation of soldiers or of war material, might not be called as witnesses to distant points and thereby be taken from their important duties as employés in such transportation; but the right of a litigant to bring his action in the county or district where he resided at the time of the accrual of his cause of action was not attempted to be restricted or limited, and the whole question in this case on this branch is whether the plaintiff was at the time of the accident a resident of Hart county, Ky.

The facts are that for some time before 1908 appellee, then admittedly a resident of Hart county, had been locally employed by the Louisville & Nashville Railroad Company, and lived with his father and mother at their home in that county, and was unmarried; that in 1908 he went to the state of Alabama under employment with that company, and remained in that state under such employment practically all of the time between that and June, 1918; that during the period he was in Alabama, or a very large part of it, he was engaged as a member of a construction crew, and that such crews lived in what are known as boarding cars, and that they had no fixed habitation, but would go from one point on the line to another, and remain only a short time at any given place, and that this was the nature of his work and employment practically all the time he was employed in the state of Alabama, although for short periods upon one or two occasions he was engaged in work for that company in other capacities, but he never remained at any one point in the state of Alabama for any great length of time or acquired a fixed habitation therein.

It likewise appears that a year or so after appellee went to Alabama his mother died, and thereafter his father's home was broken up and appellee's younger brothers and sisters went to live with their married sister, a short distance from their father's home, and in Hart county. It likewise appears that appellee would make...