Hines v. Kesheimer's Adm'x

• Citation: 198 Ky. 580,249 S.W. 1001
• Parties: HINES, DIRECTOR GENERAL, v. KESHEIMER'S ADM'X.
• Decision Date: 02 March 1923
• Court: Court of Appeals of Kentucky

249 S.W. 1001

198 Ky. 580

HINES, DIRECTOR GENERAL, v. KESHEIMER'S ADM'X.

Court of Appeals of Kentucky.

March 2, 1923

Rehearing Denied April 27, 1923.

Appeal from Circuit Court, Jefferson County, Common Pleas Branch Second Division.

Action by Frank J. Kesheimer's administratrix against Walker D Hines, Director General of Railroads. Judgment for plaintiff and defendant appeals. Reversed and remanded.

B. D Warfield and Moorman & Woodward, all of Louisville, for appellant.

Beckham Overstreet and Edwards, Odgen & Peak, all of Louisville, for appellee.

CLARKE J.

Appellee, as administratrix of her deceased husband, recovered a judgment for $10,000 for his death, alleged to have been caused by appellant's negligence.

For reversal of the judgment, appellant insists the court erred in refusing to direct a verdict for him, and, if mistaken in this, the court erred in instructions given.

In support of the motion for a directed verdict, it is urged: (1) That no negligence was proven; (2) that the death was not shown to have been the proximate result of the alleged negligence; (3) that decedent assumed the risk; and (4) was guilty of contributory neglect as matter of law.

Decedent, at the time of his death, was 52 years of age, and had been employed as a switchman in the Louisville & Nashville yards in Louisville, where his death occurred, for about 10 years, and previous to such employment had been first a railroad brakeman, and then a conductor. His death occurred at about 7:15 on the evening of December 6, 1918. At the time he was a member of a switching crew engaged in sorting cars according to their destination, in a portion of the yards constructed for and devoted to that purpose. This portion of the yards consists of a straight track called the "drill" track, from which twelve "ladder" tracks, Nos. 1 to 12, lead off obliquely nearly due north and parallel to each other, and all of these tracks are slightly downgrade toward the north. A cut of cars is brought onto one of these ladder tracks from elsewhere in the yards, and the switching crew take the cars out in the drill track and "kick" them into the different ladder tracks so as to assemble on the same track all cars having a common destination or route out of Louisville. This crew consists of five men--a foreman, engineer, fireman, front and rear switchmen. Decedent was the rear switchman, and it was his duty, under the direction of the foreman, to "line the track" so as to allow the cars to go into the desired ladder track as they were "kicked" down the drill track.

The switch heads, by which deceased "lined" the track as directed by the foreman, are located in a row in a space east of the drill track, and on the opposite side thereof from the ladder tracks. There is a switch head opposite the point where each ladder track diverges from the drill track, which shows a yellow light when the switch is set to allow cars to go into that "ladder" track, and a green light when the switch is set so as to close that track.

A few minutes before the accident, a Big Four engine came into yards on track 10, which it was desired to take back out on track 8. Some cars were standing on the drill track between tracks 8 and 10, and to remove these cars out of the way of the Big Four engine, the cut of cars attached to the switch engine which was headed south were backed down the drill and these loose cars pushed into track 12. As the engine and cut of cars attached to it started back up the drill track, the foreman told decedent to "line up" switches 10 and 8 after the Big Four engine passed into track 8, so that four cars could be kicked down the drill into track 12, and then to come over to track 3 to set the brakes on some cars he was going to kick into that track.

The foreman rode the cut of cars back to the head of the drill track and stationed himself on the side of the track where he could see the switches at tracks 10 and 8, and where he could be seen by the engineer. After the switches at 10 and 8 showed green lights he signaled the engineer to kick the four cars down the drill which he desired to place in track 12, and which he, or the head brakeman, had uncoupled from the other cars attached to the engine. In the meantime, the cars for track 3 had been kicked into that track.

Decedent was missed four or five minutes later, and upon search was found dead nearly opposite switch head 6, and according to two witnesses, lying outside the rails of the drill track on the ladder track side, but according to another witness, he was lying between the rails of the drill track near the west rail.

The foreman was the last of the switching crew to see him alive and he saw his lantern as he lined the track at switches 10 and 8, but did not see him thereafter, The yardmaster, however, saw him at switch 6, and, as he thought, setting that switch, but he did not see him leave the switch head, as he was called into...