Illinois Cent. R. Co. v. Probus

• Decision Date: 20 February 1920
• Citation: 187 Ky. 118,218 S.W. 724
• Parties: ILLINOIS CENT. R. CO. v. PROBUS.
• Court: Kentucky Court of Appeals

218 S.W. 724

187 Ky. 118

ILLINOIS CENT. R. CO. v. PROBUS.

Court of Appeals of Kentucky.

February 20, 1920

Appeal from Circuit Court, Grayson County.

Action by Cicero Probus against the Illinois Central Railroad Company. Judgment for plaintiff, and defendant appeals. Reversed.

Trabue Doolan, Helm & Helm, of Louisville, M. A. Arnold, of Leitchfield, and L. A. Faurest, of Elizabethtown, for appellant.

Haynes Carter, of Elizabethtown, for appellee.

QUIN J.

While employed by defendant (appellant) on February 22, 1916, in loading rails on a freight car plaintiff sustained certain injuries for which he sought damages. At the conclusion of the evidence introduced by plaintiff on the first trial the court peremptorily instructed the jury to find for the company. An appeal was taken, and in reversing the lower court in an opinion found in 181 Ky. 7, 203 S.W. 862, in which the facts are given more in detail, we held the evidence sufficient to take the case to the jury. Upon a retrial there was a verdict in plaintiff's favor, and defendant has appealed.

The opinion on the first appeal is the law of the case as to all matters that could or should have been raised; i. e., to the errors mentioned in the opinion, to those relied upon but not noted therein, and to the errors appearing in the first record that might have been, but were not, relied upon. Consolidated Coal Co. v. Spradlin, 184 Ky. 209, 211 S.W. 735, and cases therein cited. Therefore, if the evidence on the second trial had been the same as on the first trial no other errors appearing, an affirmance would be ordered but an examination of the record convinces us the evidence is not the same. In the former opinion the court said the evidence was not altogether satisfactory as to whether at the time of his injury plaintiff was engaged in intrastate or interstate commerce, but sufficient, however, to submit that question to the jury under proper instructions.

The opinion begins with the statement that plaintiff was engaged as one of a crew of men handling steel which was being loaded and unloaded upon and along the company's main tracks in Hardin county. This statement was evidently based upon an answer to question propounded to plaintiff wherein he said:

"A. Yes, sir; they put them in the main track, that is what they said they did in places where they needed them; we unloaded several."

This information came from the section foreman. If at the time of his injury, plaintiff was handling rails that were later used on the main line of the company, an interstate carrier, the issue was one cognizable under the federal act, and this evidence made out a case for the jury.

Plaintiff was first employed by the company on February 21st, the day preceding the accident, on which day it is testified the crew of which he was a member was engaged for practically the entire day in loading and unloading rails along the company's right of way. On the following day, plaintiff says they unloaded certain rails before reaching Dugans, the station at which the rails were stacked, during the loading of which he was injured. The stacks at Dugans contained 54-pound rails only, and the record is replete with statements of witnesses, both for plaintiff and defendant, that rails of this weight were not then being used by the company. Neither plaintiff nor any other witness, other than as hereinafter noted, undertake to explain what became of the rails that plaintiff, and members of the crew, were loading at the time of the injury. Before reaching Dugans plaintiff testifies that the foreman, in referring to certain rails then on hand, said:

"Throw them off; I'm going to use every one of them here on the Hodgenville branch."

The foreman denies making any such statement, but be this as it may, the reference, if made, could only have been directed to the rails unloaded the morning of the accident, and before they reached Dugans. According to defendant's witnesses, and to several of those introduced by plaintiff, no 54-pound rails were ever thereafter used on the Hodgenville branch, or on any other portion of the company's main line, or sidings; the lighter rails were being replaced with much heavier ones. While plaintiff testified that the stack upon which he was working at Dugans contained rails of various weights and lengths, he nowhere says these rails were subsequently used by the company; nor does he testify that the foreman said he was going to use any of these rails on the Hodgenville branch.

The testimony on the two trials is substantially the same. However, it was not made clear on the first trial to what rails the foreman referred when he spoke of their future use. But all doubt on this point was removed on the second trial, since plaintiff himself, as well as other witnesses, made it plain that this remark, if made, could only have referred to the heavier rails handled on the 21st, or on the 22d, and before the train reached Dugans. It matters not to what use those rails were put, plaintiff was not injured while handling them, our inquiry is directed to the rails at Dugans, and the company's supervisor is the only one who undertakes to tell what became of these rails. He says he was informed the company had sold them, and he was instructed to deliver them at Cecilia for shipment, but, being unable to state of his own knowledge to whom they had been sold, further questioning along this line was not permitted by the lower court.

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