Hunsaker's Admrx. v. C. & O. Ry. Co.
| Decision Date | 14 November 1919 |
| Citation | 185 Ky. 686 |
| Court | Kentucky Court of Appeals |
| Parties | Hunsaker's Admrx. v. Chesapeake & Ohio Railway Co. |
Appeal from Boyd Circuit Court.
R. D. DAVIS, C. W. DILLE and S. S. WILLIS for appellant.
WORTHINGTON, COCHRAN & BROWNING and PRITCHARD & PUTNAM for appellee.
James A. Hunsaker was, and had been for a long while, in the employ of the appellee and defendant below Chesapeake & Ohio Railway Company, hereinafter referred to as the Railway Company, in its yards in Ashland, Kentucky, in the capacity of conductor of a switching crew. The Ashland Coal & Iron Railway Company (hereinafter referred to as the Ashland Company), a Kentucky corporation, owned and operated some of the tracks in the yards in Ashland in which Hunsaker operated his train, while the railway company owned other tracks in the same yards with the joint privilege on the part of each company to use for certain purposes all of the tracks.
Tracks numbers four and five, and the main track, were owned by the defendant railway company. Three other tracks paralleling the ones mentioned, as well as some connecting with the ferry crossing the Ohio river, and others leading to different parts of the city of Ashland, were owned by the Ashland company.
On March 25, 1915, the deceased, with his crew, was making up a train for the defendant, and had pushed about twenty-five cars upon the main track; they were going to pick up other cars from track number five and put them into the train, which cars had been placed upon that track by the Ashland company, it having brought them from other roads to be transported by the defendant, railway company. There was a space between two of the five cars and the other three, and for some cause unexplained in the record, Hunsaker went into that space. Just as he did so the Ashland company shoved a refrigerator car upon that track, which caused the two cuts of the five cars to come together with such force that Hunsaker was caught between the couplings and killed.
Two separate suits were filed by the plaintiff as administratrix, one against the Ashland company and the other against the defendant, railway company, to recover damages for his death. The one was brought for ordinary negligence under the state law, while the other (being the one now under consideration) sought a recovery under the Federal Statute known as the Employers' Liability Act, it being charged that the deceased was at the time of sustaining his injuries engaged in interstate commerce, as was also the defendant, and that it was negligent in failing to furnish deceased a safe place in which to work and safe appliances with which to perform it, the appliances complained of being defective automatic couplings, which was in violation of the Federal Statute upon that subject. Issues were made in each case, and upon trial the court sustained a motion made in each of them to direct a verdict in favor of defendants. Upon appeal from the verdict in favor of the Ashland company this court in the case of Hunsaker's Admrx. v. Ashland Coal & Iron Railway Company, 181 Ky. 598, reversed the judgment upon the ground that there was proof of the negligence of defendant in that suit, and that the case should be submitted to the jury under appropriate instructions. The facts relative to the local situation, as well as to the manner in which the accident occurred, are set out with considerable detail in that opinion, to which reference is here made.
On this appeal from the judgment rendered upon the directed verdict in favor of the defendant railway company it is insisted that there is sufficient evidence supporting the allegations of the petition to authorize a submission of the issues to the jury, and that the court erred in failing to do so. It does not appear upon what terms the two companies jointly operated the various tracks in the yard where the accident occurred. But that the joint operation was under some kind of arrangement agreeable to and acceptable by the defendant railway company is admitted. It is quite clear, however, that the liability of the defendant, if any, can not be put upon any ground growing out of nonperformance of its duties as lessor or licensor, since the active negligence, if any, which brought about the death of the deceased was that of the Ashland company, and for whose negligence the defendant as lessor or licensor would be liable only if the deceased Hunsaker sustained to it the relation of third person or a member of the public. Just when and to what extent the lessor or licensor who owns a railroad is liable to those sustaining only such relations for injuries occurring through negligence of the lessee or licensee, the courts of the different states are not altogether in harmony. But in this state the owner of the track who leases it or grants joint operating privileges to another is liable to third persons and members of the public for the negligent operation and handling of trains over the road by the lessee or licensee (L. & N. R. R. Co. v. Breeden's Admrx., 111 Ky. 729), as well as for injuries resulting from the negligent omission to maintain its tracks, station houses, &c., in reasonably safe condition, and that servants of the lessee or licensee are third persons within this rule insofar as to make the lessor liable to them for any failure to maintain the road, station houses, &c., in reasonably safe condition. Swice's Admrx. v. M. & B. S. R. Co., 116 Ky. 253; I. C. R. R. Co. v. Skeegog's Admr, 126 Ky. 252; Clinger's Admr. v. C. & O. Ry. Co., 128 Ky. 736; and C. & O. Ry. Co. v. Vaughan's Admrx., 159 Ky. 433. But it has never been held by any court, so far as our research goes, that the servant of a lessor or licensor is a member of the public or a third person within the above rule. As between the lessor and his servant the relation is purely contractual, and the duties of the one to the other arise exclusively from such contractual relation. This distinction is recognized in the case of Charles A. Lee v. Southern Pacific Railroad Company, 116 Cal. 97, referred to and quoted from with approval in the Skeegog case, wherein it is said:
"But where injury has resulted to an employe of the operating company by reason of a failure of the lessor to perform its public duty, as in the failure to construct a safe road, as is here charged, the injured employe may sue the lessor company, as one of the public, for its failure to perform that duty, and not because between himself and the lessor company the relation of employe and employer, or any relation of contractual privity, exists."
The distinction is also recognized by the learned authority of Elliott on Railroads, vol. 1, sec. 472, wherein, upon the point under consideration, he says:
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