Illinois Cent. R. Co. v. Skinner's Adm'x

• Decision Date: 09 October 1917
• Parties: ILLINOIS CENT. R. CO. v. SKINNER'S ADM'X. [a1]
• Court: Kentucky Court of Appeals

197 S.W. 552

177 Ky. 62

ILLINOIS CENT. R. CO. v. SKINNER'S ADM'X. ^[a1]

Court of Appeals of Kentucky.

October 9, 1917

Appeal from Circuit Court, McCracken County.

Action by the widow and administratrix of Lloyd B. Skinner deceased, against the Illinois Central Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Wheeler & Hughes, of Paducah, Blewett Lee, of Chicago, Ill., and Trabue, Doolan & Cox, of Louisville, for appellant.

John K Hendrick, Andrew M. Nichols, and Frank N. Burns, all of Paducah, for appellee.

CLARKE J.

This suit was brought by the widow of Lloyd B. Skinner, as administratrix, against the Illinois Central Railroad Company to recover damages for his death.

The deceased, at the time he was killed, and for a long time prior thereto, had been in the employ of the railroad company as car inspector in its yards at Paducah, and it was a part of his duties to do light repair work on cars, and to couple the cars and air hose thereon when trains were being made up in the yards. He was killed in the yards when he fell under a moving train while going from one part of the yards to another to couple the air hose on a train which was about to start on an interstate journey, and there is no dispute as to the fact that the railroad company was engaged in interstate commerce, and that the deceased was employed by it in such commerce at the time he came to his death. This being so, the action was brought under the federal Employers' Liability Act.

One ground of negligence relied on in the petition was that the deceased, while walking in the space between the tracks that was set apart for the use of employés, and while attempting to board a cut of moving cars for the purpose of riding to the place where an air hose was to be coupled, stumbled over or came in contact with a jack block that through the negligence of the company had been left in this space; that when he stumbled over this jack block it broke loose his handhold on the grabiron of the car he was trying to get on causing him to fall against a standing car on the adjacent track, and to be thrown by the impact with the car under the wheels of the moving train. Another ground of negligence charged was that the railroad company had located its tracks so close together as to make the place at which the deceased was killed unsafe and dangerous. Generally speaking, the negligence alleged was that the company failed to furnish the deceased with a reasonably safe place in which to do the work he was engaged in doing.

The answer of the company was a denial, coupled with pleas of contributory negligence and assumed risk. On a trial of the case before a jury there was a verdict for the administratrix, which will be later noticed more in detail, and from the judgment on the verdict the railroad company prosecutes this appeal.

The evidence is undisputed that the deceased was a capable, experienced railroad man, active, young, and strong, and of good character and fine habits; that he left surviving him his widow and two children aged, respectively, 14 and 11 years; that his wages averaged $75 a month; that his widow and children were wholly dependent on him for support, having no property or income of their own; nor is there any dispute about the fact that when he attempted to board a moving train in the yards, which was going about 6 miles an hour, for the purpose of riding on the train to the point where he was to couple the air hose, he fell and was thrown against a car standing on an adjacent track, and the force of the impact with this car threw him under the wheels of the moving train.

Robert Rief, a witness for the administratrix, testified that he was standing 40 or 50 feet away and saw the deceased try to catch with his left hand a grabiron on a car on the moving train; then saw him stumble and fall over against a standing car, from which place he was thrown under the moving train; that he stumbled over a jack block, which is a piece of wood about 12 inches long, 6 inches thick, and 10 inches wide, with a handle on it; that this jack block was lying on the ground in the space between tracks 1 and 2. He further said that immediately before the accident he was walking between tracks Nos. 1 and 2 going in one direction and passed the deceased, who was going in the other direction; that just after he passed him he turned around and saw him stumble over the jack block; that he first saw the jack block that morning as he was walking up between the tracks just before he passed the deceased. He was not asked, nor did he say, how long the jack block had been where he saw it, and according to his evidence he first saw it only a few moments before he saw the deceased stumble over it.

George Ellis testified that he saw the deceased, who was walking in the same direction the train was moving, when he attempted to board the train. He was then asked and answered these questions:

"Q. What did he fall over? A. I did not see anything but a jack block, and whether he stumbled over that or not, I do not know. Q. State where this jack block was. A. Between No. 1 and No. 2. Q. State if you know what caused him to fall. A. From what I saw as he caught the train, he did not get his hands on the first car, and he tried to catch the second car, and it threw him over on the car on No. 1 track. Q. When did you first see that jack block? A. When I went down there where he was killed I went in the same way he went in to catch the cars. Q. You did not see that until after he was dead? A. No, sir. Q. That was between the cars? A. Between the two tracks. Q. There were cars on both tracks? A. Yes, sir. Q. You didn't see him when he got killed? A. I did not see it when it killed him. He stumbled and fell. Q. Did he stumble? A. I don't know; that block was right there. Q. Do you know whether or not that man stumbled at all? A. I don't know whether he stumbled or not, but this block was right in there. Q. That jack block you saw between No. 1 and No. 2 tracks, did you recognize that jack block when you saw it? A. Yes, sir; I had used it. Q. Had you ever marked it in any way that you could tell it? A. I had a handle off of a box car door, and I took it and put this handle on it. Q. And this was the jack block you put the handle on? A. Yes, sir."

John Stubblefield, another witness for the administratrix, said:

"As I was going down the main line and as I got near tracks No. 1 and 2, I saw a man run out of the shack with a wrench in his left hand, and run over towards the train that was moving north, and went running down by the side of this train and stumbled over a jack block, and that threw him against the side of a standing car, and he fell back under the moving train. The train went about 20 or 30 feet and stopped, and somebody run up and got him out. Q. With reference to tracks No. 1 and 2, where was this jack block located? A. Between tracks 1 and 2. Q. Which foot struck this jack block? A. It seemed like his left foot. Q. When did you first see this block? A. His foot struck this block, and as I moved on down there I passed over this block. Q. As you went down there? A. As I went down there like anybody else would. Q. Where was the block lying? A. Between No. 1 and 2 near the standing car, about 20 or 30 feet from the place where the deceased was killed."

Robert Kimble, an employé of the company, said:

That on the day of the accident he was employed as an oiler by the railroad company, and was also putting in brasses. That he carried brasses, which he got out of the shack in a wheelbarrow. "Q. Had you a jack block with you? A. Yes, sir. Q. At the time he was killed wasn't you putting in a brass and saw him stumble? A. Yes, sir; I saw him. Q. How far away were you? A. Four or five car lengths. Q. Was there a jack block there? A. I had it in the wheelbarrow. Q. Was there any around there? A. No, sir. Q. Had you had any occasion to use them around there? A. I had them in the wheelbarrow. Q. How many did you have in your wheelbarrow? A. I don't know. I generally carry one jack block and two wedges. Q. How many jack blocks did you have in that little house (shack)? A. A jack block and two wedges. Q. At times these jack blocks were scattered along the track? A. We always keep them in that little house. Q. Why do you have so many? A. When one breaks we have another. Q. Do you never take but one out at a time? A. No, sir. Q. Did that jack block you had that morning have a handle on it? A. No, sir. Q. Did any of them have handles on them? A. We have several with handles on them. Q. You had not used the jack block? A. No, sir."

On behalf of the railroad company Maurice Lewis, chief car inspector for the company at Paducah, said he was 30 or 60 feet away and saw the accident; that when he first saw the deceased that morning he was talking to W. R. Rowlett and C. M. Lewis, also employés of the company, and as he walked up to where they were, the deceased got up and started down between tracks Nos. 1 and 2; that the duties of the deceased required him to be about 600 or 700 feet from where he was when he started; that he saw deceased get killed; that there was nothing on the ground close to where he was killed, but that Robert Kimble had a jack block where he was putting in brasses about 100 feet north of where the deceased was killed. He said he did not see him stumble, as there was nothing over which he could stumble; that when he struck the standing car on track No. 1, he fell about 15 or 20 feet under the moving train.

W. R Rowlett, also an employé of the company, said that he, the deceased, and two or three other men were standing together when the deceased left to get on the moving train to go to the place where he was to adjust the air hose; that when he got...