I.C.R. Co. v. Halterman
| Decision Date | 24 February 1925 |
| Citation | 208 Ky. 811 |
| Parties | Illinois Central Railroad Company v. Halterman. |
| Court | United States State Supreme Court — District of Kentucky |
1. Master and Servant — Proof of Injury by Timber Projecting from Train Creates Burden of Disproving Negligence. — In action by one of section crew against railroad, under federal Employer's Liability Act (U.S. Comp. Stats., sections 8657-8665), proof that he was injured by piece of timber falling or projecting from passing freight train held sufficient to shift to railroad burden of disproving negligence, without recourse to doctrine of res ipsa loquitur.
2. Master and Servant — Verdict for Employee Struck by Timber Projecting from Train Held Not Against Evidence. — Where section employee was knocked from motor car by timber falling or projecting from freight train, verdict for employee under federal Employers' Liability Act (U.S. Comp. Stats., sections 8657-8665), held not flagrantly against evidence, in view of defendant's evidence as to character of inspections made.
Appeal from Carlisle Circuit Court.
TRABUE, DOOLAN, HELM & HELM, JOHN E. KANE and R.V. FLETCHER for appellant.
BEN S. ADAMS and R.M. SHELBOURNE for appellee.
Affirming.
Appellant, Illinois Central Railroad Company, prosecutes this appeal from a $3,500.00 judgment rendered against it in favor of appellee, Robert Halterman, by the Carlisle circuit court, in an action by him against it for personal injuries.
As appellant's case is presented to us upon the appeal by brief of its counsel, two questions are relied upon as authorizing a reversal of the judgment. It is insisted that the trial court erred in overruling appellant's motion for a peremptory instruction at the close of appellee's testimony and at the close of all the testimony, and that the verdict of the jury is flagrantly against the evidence. The two questions may be considered together.
It appears that at the time appellee was injured he was a member of a section crew employed by appellant engaged in repairing a trestle on its main line of railroad. It is conceded that he was engaged in interstate commerce and the action was brought under the Federal Employers' Liability Act. Work for the day had ceased and the section crew on two motor-propelled cars owned and operated by appellant were returning to their homes at Bardwell, Kentucky. They were proceeding south on appellant's west track at the place. They met and were passing one of appellant's freight trains proceeding north on the east track. Buck Dickerson was sitting on the front end of the motor car on the side next to the freight train. Appellee Halterman was sitting next to him, while others of the section crew sat between them and the rear of the car. While passing the freight train a piece of timber that fell or was projecting from one of the freight cars struck and knocked from the motor car both Dickerson and appellee. Dickerson was instantly killed and appellee was severely injured. With reference to what struck him appellee testified that it was a piece of timber; that before it struck him he saw it in the air between him and the train. Another member of the section crew who sat next to him testified that, while he did not see what it was that struck and knocked appellee and Dickerson from the car, he was conscious of something brushing close by his face just as the two men were knocked from the car. A freshly sawed, 2 by 8 pine board, 16 feet long, was found on the right of way between the two tracks near where and immediately after the accident occurred. It was used as a stretcher, and the lifeless body of Dickerson was carried home on it. Another piece of timber, the same size and description, was found early the next morning by the section crew as it returned to work between where the accident occurred and Bardwell, the direction from which the freight train approached late the evening before. It was found on the right of way and between the two tracks. No witness save appellant testified to having seen what it was that struck him and knocked him from the car. The testimony, however, leaves no room for doubt, that whatever it was that struck and knocked appellee from the car either fell from or was hanging from the passing freight train. It was shown that there were a number of freight cars in the passing freight train loaded with lumber and some with the same description of lumber as that found near where the accident occurred. The foregoing constitutes a brief summary of the evidence for appellee that his injury resulted from the negligence of appellant.
It is insisted for appellant that the doctrine "res ipsa loquitur" does not apply as between master and servant, and that under the Federal Employers' Liability Act the burden of showing negligence is upon the plaintiff, and...
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