Illinois Central Railroad Co. v. Townsend
| Citation | 206 Ky. 329 |
| Parties | Illinois Central Railroad Company v. Townsend. |
| Decision Date | 19 December 1924 |
| Court | Court of Appeals of Kentucky |
Appeal from Grayson Circuit Court.
TRABUE, DOOLAN, HELM & HELM, L. A. FAUREST and ALLEN P. CUBBAGE for appellant.
HAYNES CARTER for appellee.
On September 24, 1921, the appellee and plaintiff below, Mort Townsend, who was 42 years of age, was a member of an extra gang in the employ of appellant and defendant below, Illinois Central Railroad Company, and was engaged in laying new rails in the track of defendant, a part of which runs through Grayson county. Another extra gang was engaged in the same work, and each of them were transported to their work and carried their tools and some supplies in a gasoline motor hand car. Between two and three hundred yards from the point where the gang or crew with which defendant was working they started their car for the day's work, and while going around about a six degree curve, it collided with the car of the other crew, going in the opposite direction, inflicting the alleged injuries to plaintiff for which he sought recovery in this action. He stated in his petition that the injuries for which he sued "were caused solely by the negligence of the defendant, its agents, servants and employes in charge of said cars and that the said defendant, its agents and servants negligently and carelessly suffered, caused and permitted the said cars to collide and that but for said negligence on its part, the said collision would not have occurred."
The answer was a denial of all the material averments of the petition, with a plea of contributory negligence, which was denied, and upon a trial before a jury it, under the instructions given by the court, returned a verdict "for the plaintiff in the sum of $900.00 for loss of time and permanent injury." Defendant's motion for a new trial was overruled and from the judgment pronounced on the verdict, it prosecutes this appeal.
There was but little conflict in the testimony as to how the accident happened, though practically all the witnesses disagreed with plaintiff as to the speed of the two cars, both at the time they were first observed approaching each other and when the collision happened, as well as upon the fact as to what effect the collision had on plaintiff at the time. Plaintiff says that when he discovered the approaching car of the other crew moving south around the curve he was sitting on the floor of his car with his feet hanging over its front end and between two other members of the crew, which consisted of about ten or a dozen persons; that he thereby had no opportunity to jump from his car as other members of the crew did, and that he laid his back on the floor of his car with his feet and legs extending perpendicularly with the floor so as to prevent injury to them by the collision; that directly after placing himself in that position the collision occurred while, as he thinks, his car was running three or four miles an hour and the other one "right fast," and that the next thing he knew he was lying on the ground at the end of the crossties when he discovered that he was hurt in some manner in his back and in one of his legs. The other witnesses testified that the car upon which plaintiff was riding was almost stopped when the collision occurred and that the other one was not traveling exceeding two or three miles per hour, and that the collision was not a severe one, although one witness testified that one of the back wheels of plaintiff's car was off the track, and a small rod on its front which came in contact with some part of the car was slightly bent. It was also shown that most of those on plaintiff's car jumped or stepped off of it before the collision, although four or five of them were on it at the time of the collision, including one of those sitting beside plaintiff and upon whose arm he was reclining. The same witnesses testified that plaintiff made no complaint at the time of any injury except to his leg, and that he was not rendered senseless, but was standing and commenting on the collision with the other members of the crew. One of them had his finger upon the rod that was bent and it was injured and required the treatment of a physician, and the foreman, with other members of the crew, testified that the one so injured was sent to a physician by the foreman and that he also requested plaintiff to go to the physician but that he declined to do so upon the ground that he was not sufficiently injured to require such services. One of the cars was lifted off the track so as to let the other one by and the journey to the work was resumed.
The accident occurred on Saturday and plaintiff remained with his crew until Tuesday at noon, when he went home and did not report for work for something like three weeks, but at that time his place had been filled and he was not taken back. He does not pretend, nor did any one testify, that there was any bruise on any part of his body, nor was there any abrasion of the skin, and he never called on a physician for treatment at any time thereafter. He says that for the three weeks that he did not report for work he did jobs around the house and either during that time or thereafter worked upon his farm and also filled contracts with at least three different persons to get out and deliver certain quantities of crossties, the work of which he himself did, including not only the manufacture of the ties but also the work and labor of loading, hauling and unloading them at the point of delivery. He testified that his back would sometimes hurt him and especially after engaging...
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