Illinois Cent. R. Co. v. Coleman

• Decision Date: 22 November 1900
• Citation: 59 S.W. 13
• Parties: ILLINOIS CENT. R. CO. v. COLEMAN. [1]
• Court: Kentucky Court of Appeals

59 S.W. 13

ILLINOIS CENT. R. CO. v. COLEMAN. ^[1]

Court of Appeals of Kentucky.

November 22, 1900

Appeal from circuit court, Muhlenberg county.

"Not to be officially reported."

Action by James T. Coleman against the Illinois Central Railroad Company to recover damages for personal injuries. Judgment for plaintiff, and defendant appeals. Reversed.

Jonson & Wickliffe and Pirtle & Trabue, for appellant.

R. Y Thomas, Jr., for appellee.

HOBSON J.

Appellee was in the employ of appellant in its yard at Central City. He was a laborer working under the yard master, and filed this suit to recover for personal injuries alleged to have been received by him by reason of the negligence of the yard master. The alleged negligence was denied, and on the trial in the court below there were a verdict and a judgment in his favor for $1,550. The important questions arising on the appeal relate to the sufficiency of the evidence to sustain a recovery, and the correctness of the instructions given by the court below to the jury.

Appellee was the only witness introduced on his behalf as to the circumstances of his injury. The material part of his testimony is as follows: "In 1896 and 1897 I was in the employ of the Illinois Central Railroad Company, at its yards in Central City, as a switchman. My duty was to couple and uncouple cars, and to do such other work about the yards as I was directed to do by W. L. Surran. W. L. Surran was the yard boss or yard master, and I worked under his orders. On the evening of the 9th of October, 1897, Surran called me and told me to help him uncouple two cars. The coupler used was worked by an iron bar or lever. The cars were standing on a curve. Surran had hold of the lever when I came up, and told me to put my foot against the car and to push against the lever. I did so, and as I pushed he gave the lever a sudden jerk or wrench, which threw it suddenly forward about 12 inches, so as to give me a sudden wrench. I was not expecting him to give this sudden jerk or wrench. I felt a tingling stinging pain in my stomach at the time, but I did not know what it was, and did no say anything about it. I knew I was hurt somewhere at the time. About an hour or an hour and a half afterwards I had gone home, and was taking a bath, and discovered a lump on the right side of my stomach. I did not know what it was. The next morning I went to Dr. M. P. Creel who was acting as surgeon for the company, and he looked at the lump and told me I had a rupture, and told me to get a truss. I got one and am wearing it now.

I have not been able to work any since then on the yard. I have no power to lift or do hard labor. Dr. McDowell examined me about the 10th of October, 1897, and Dr. Townes examined me on the 17th of September, 1898. Dr. McDowell found two ruptures on my stomach,--one on the right side, and one on the left side. My injuries incapacitate me, to a large extent, from laboring or earning money." The only other evidence, except that of the physicians who examined appellee and sustained his testimony as to the hernia, is the testimony of V. L. Surran, who was introduced by appellant, and said that he did not recollect whether he gave a sudden jerk or not, or whether they both had hold of the lever; that no complaint was made at the time; that the usual way to couple cars is by pulling the lever back; that jerking the lever is not the usual way.

The court overruled appellant's motion for a peremptory instruction, and also refused to give the jury this instruction, which was asked: "The court instructs the jury that, in accepting the employment of a switchman or brakeman upon defendant's railroad, the plaintiff accepted it with the implied agreement that he accepted the ordinary risks incident to the occupation of a brakeman or switchman; and if they believe from the evidence that he received the injury complained of, if any, while in the discharge of his duty as such switchman or brakeman, and that it was the result of one of the dangers incident to said employment, then they will find for defendant, unless the injury, if any, was the result of gross negligence in his superior servant of the defendant." The court gave the jury the following instructions: "(1) The court instructs the jury that if they believe from the evidence that the plaintiff was injured on the occasion in question by the negligence of the superior fellow servant of the defendant, or was injured while in the performance of an unusual or hazardous character of work for defendant, which was undertaken by plaintiff at the direction of his superior fellow servant, and that danger attending same was unknown to plaintif...