Illinois Cent. R. R. Co. v. Jordan

• Decision Date: 02 February 1904
• Citation: 117 Ky. 512
• Parties: Illinois Central R. R. Co. v. Jordan.
• Court: Kentucky Court of Appeals

Page 512

117 Ky. 512

Illinois Central R. R. Co. v. Jordan.

Court of Appeals of Kentucky.

February 2, 1904.

APPEAL FROM HICKMAN CIRCUIT COURT.

JUDGMENT FOR PLAINTIFF AND DEFENDANT APPEALS. AFFIRMED.

J. M. DICKINSON, PIRTLE & TRABUE, AND N. P. MOSS, FOR APPELLANT.

SHELBOURNE & KANE, AND R. L. EVANS, FOR APPELLEE.

OPINION OF THE COURT BY JUDGE PAYNTER — AFFIRMING.

Appellee was a section foreman for appellant at Idlewild, Tenn. A fast train of appellant was due there at 5:51 a. m., but was four or five minutes late. It was the duty of the appellee to go to his work at 6 a. m. Under the rule of the company, well known to him, it was made his duty to have the track cleared of the hand car twenty minutes before the time any freight or passenger train was due to arrive. In violation of this rule, the appellee had the hand car upon the track, his crew with himself boarded it, and started south to their work. After going about three-quarters of a mile, at the entrance of a cut about 1,500 feet long, the car was stopped, and one of the crew went back a short distance to listen for the past-due train. He reported that he did not hear it. The appellee and the crew proceeded with the hand car until they were nearly to the south end of the cut, when they discovered the approach of the belated train. The hand car was stopped, and the crew made an effort to remove it from the track, but failed to remove one corner of it, and the crew other than appellee fled to a safe place. Appellee either remained or returned — as to which the evidence is conflicting — and was making an effort to remove the car, when he was struck by the train, or the hand car was struck by it, and thrown against him, seriously injuring him. He acted in violation of the rule of the company; was guilty of the grossest kind of the negligence in imperiling the lives of his crew and the persons on the approaching train by operating the hand car under the circumstances. While it was a commendable act to remain and endeavor to remove the hand car from the track, and thus possibly save the lives of the persons on the train which he had by his reckless conduct imperiled, still it was suicidal in character. The uncontradicted evidence shows that after those in charge of the train discovered the hand car on the track it was not possible to stop the train before it struck it. The disposition of the questions can not be made under the rules of law which prevail in this jurisdiction, but must be done under the law of Tennessee, where the accident happened.

In Louisville & Nashville R. R. Co. v. Whitlow's Adm'r, 19 R., 1931, 43 S. W., 711, 41 L. R. A., 614, this court said: "The question presented to the court is whether the Kentucky or Tennessee law as to contributory negligence applies. Under the Tennessee law, if the intestate was himself guilty of negligence that contributed to his injury and death, yet, if the defendant was guilty of negligence which was the direct and proximate cause of intestate's injuries and death, then the plaintiff is entitled to recover, but the damages recoverable to be reduced or mitigated by reason of the intestate's contributory negligence. Under our law, if the intestate was guilty of such contributory negligence except for which his injuries and death would not have occurred, then there can be no recovery. Contributory negligence, under our rule, is never applied in mitigation of damages. . . . At the time the injury was inflicted, the right of action became fixed, and a legal liability was incurred. The liability which the plaintiff seeks to enforce was incurred by virtue of the law of Tennessee. The law of contributory negligence, as adjudged in this State, can not be applied so as to alter or affect the right of action which arose in the State of Tennessee." The recovery is sought under the Tennessee law. If the case were to be disposed of under the law of this State, the court would reach a conclusion different from the one forced upon it by the Tennessee law. So much of the statute law of Tennessee (Thompson & S. Code) as is pertinent to the inquiry reads as follows:

"Section 1298. In order to prevent accidents upon railroads, the following precautions shall be observed: . . . (4) Every railroad company shall keep the engineer, fireman or some other person upon the locomotive, always on the lookout ahead; and when any person, animal or other obstruction appears upon the roads, the alarm whistle shall be sounded, the brakes put down, and every possible means employed to stop the train and prevent an accident.

"Section 1299. Every railroad company that fails to observe these precautions, or cause them to be...