Illinois Cent. R. Co. v. Vaughn

• Citation: 111 S.W. 707
• Parties: ILLINOIS CENT. R. CO. v. VAUGHN.
• Decision Date: 20 June 1908
• Court: Court of Appeals of Kentucky

111 S.W. 707

ILLINOIS CENT. R. CO. v. VAUGHN.

Court of Appeals of Kentucky.

June 20, 1908

Appeal from Circuit Court, Henderson County.

"Not to be officially reported."

Action by Ocey Vaughn against the Illinois Central Railroad Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Trabue Doolan & Cox and Lockett & Worsham, for appellant.

Dorsey & Stanley and J. Morgan Chinn, for appellee.

O'REAR C.J.

Appellee was flagman on a work train on appellant's road. The work train, in going into Clarksville, Tenn., ran into a freight train standing on the track near the city limits of Clarksville. The work train was composed of the locomotive caboose, and a flat car, the latter loaded with railroad track rails, and owing to a defective drawhead, or coupler was coupled back of the caboose. Appellee's duty was to look after the rear of the train, where the caboose is ordinarily. He was riding in the caboose. When noticing the engineer, fireman, and conductor jump from the engine, he ran to the rear of the caboose to jump off. At that moment the collision occurred; some of the rails on the flat car being driven forward by the impact, pinning his body to the car. He claims to have sustained permanent injury to his leg and kidneys, and painful injuries elsewhere upon his person. He sued for and recovered $2,000 as damages.

The peremptory instruction asked for by appellant was properly overruled. A collision of two trains, under the circumstances shown, of itself proves that those operating the trains, or one of them, were negligent. Furthermore, it was gross negligence in those in charge of one or the other of the trains certainly, and may be of both, to have so disregarded orders, in running on the time of the other, or of the train dispatchers in letting two trains out on the same track running in opposite directions at the same time at the meeting point, without notifying either of the other's presence. So that on that score there was enough evidence of gross negligence in the fact of the collision to have taken the case to the jury. Nor is there any merit in the contention that plaintiff was not in his proper place when he was injured. The company had not the right to injure or imperil him by its gross negligence, whereever he (an employé), rightfully upon the train, may have been upon it. But the caboose was shown to be the usual place for the flagman to ride while the train was running between stations. He was therefore in his proper place. When put in peril by an imminent collision, he was not obliged to exercise a correct judgment as to the course he should pursue for his own safety. His act in attempting to jump from the rear of the car was natural under the circumstances, and he was not negligent in his choice of means to avert or escape from the peril in which his master's negligence had placed him.

Appellee testified, on the trial, that he was so severely injured that he could not thereafter follow his former avocation, and was, indeed, physically unfit for hard, manual labor. It was shown, however, that some two or three months after his injury he again went to work for appellant railroad company in his old capacity as a flagman on freight trains. But he testified that he was compelled to quit the job on account of his injuries having so impaired his strength as to make him incompetent for such hard labor. He also testified that, owing to his being unable to do the work, appellant discharged him. He was asked on cross-examination if he had not been discharged because of his inebriacy, instead of his physical disablement. He denied it. The appellant then offered to prove that he had, on returning to work after the injury, been as able to perform his duties and did so as competently as ever before, and was so employed for several months, making the same wages as before his injury; but that, owing to his intemperate habits as to use of intoxicants, he was discharged. The trial court refused to allow the evidence offered by appellant as to the reason for discharging appellee. We think that was error. If appellee had not by his testimony endeavored to make, and probably had made, the impression on the jury that he had been discharged because of his weakened and impaired physical condition to do the work of a brakeman, the evidence on that point offered by appellant would have been irrelevant. But appellant was entitled to rebut the statement made by appellee on this point. It was not collateral.

Appellant pleaded that, some days after appellee's discharge from the hospital, he entered into a compromise agreement with it by which, in consideration of $100 then paid to him by appellant, his claim for damages on account of the injuries sustained in the collision was settled and compromised. The written agreement was filed with the pleading. Appellee replied that he was procured by fraud to sign the agreement; that he did not read it; that appellant's agent with whom the settlement was made represented that the only matter that was being settled was the time which appellee had lost from work while laid up by his injuries; and that he was assured that his claim for damages, if any there was, was not affected by the settlement. He also pleaded that, owing to his intense suffering, and being under the influence of morphine taken to ease his...