Jones v. L. & N.R. Co.

• Decision Date: 18 April 1944
• Citation: 179 S.W.2d 874,297 Ky. 197
• Parties: JONES v. L. & N. R. CO. et al.
• Court: Kentucky Court of Appeals

179 S.W.2d 874

297 Ky. 197

JONES v. L. & N. R. CO. et al.

Court of Appeals of Kentucky

April 18, 1944

Appeal from Circuit Court, Harlan County; James S. Forester, Judge.

Action by Grant Jones, administrator and father of Billie Jones against the L. & N. Railroad Company and another to recover for the son's death caused by his falling or jumping from a coal car. From a judgment for defendants, plaintiff appeals.

Affirmed.

G. G Rawlings and J. L. Williams, both of Harlan, for appellant.

H. L Bryant, of Pineville, J. C. Baker, of Harlan, and H. T. Lively, of Louisville, for appellee L. & N. R. Co.

J. B. Carter and Sampson & Sampson, all of Harlan, for appellee Tway Coal Co.

MORRIS Commissioner.

Grant Jones, father of Billie Jones, a seven and half year old boy, sued appellees for damages on account of the boy's death, occasioned by his falling or jumping from a coal car, property of the railroad company, while it was upon a private siding on coal company's premises. Appeal is from a judgment for appellees under instruction of the court.

The proof shows that the railroad employees, as was the custom, on Friday August 14, 1942, the day before the accident, set in several cars on the siding which were taken by the coal company by means of cable to be dropped down under the tipple for loading. This car was so handled by employees of the coal company and when it came under the tipple a wheel was spragged until the employee could climb upon the car and tighten the brake. When this was done the wedge was removed and the coal company's employees proceeded to load, filling the car nearly half full, leaving it for further loading when work was resumed on Monday morning.

The petition charged that the railroad company 'placed on the side track of the coal company, a gondola with brakes so out of repair as not to secure it when placed on a grade,' and that due to the defective brake the car 'got loose and ran over the deceased.' The negligence against the coal company consisted in its employees knowing of the defective brake, 'leaving it in that condition.'

An amendment alleged that the defendants knew that it was a custom of the deceased and other children who lived near to be attracted by the gondolas, and to play around and upon them. The railroad company denied all allegations of the petitions except that the boy met his death in an accident 'with a railroad car at the tipple of the coal company,' and that the car was partially loaded. It affirmatively charged that the accident was due to the negligence of the parents, who lived near by in permitting the boy to go upon the premises.

It then plead specifically that when its employees set the car on the siding it was in the exclusive control of the coal company. The coal company denied and plead the negligence of the boy and his parents. Replies completed the issues. Proof showed that the railroad company placed its cars on the siding on the property of the coal company, and that all movements thereafter were by the coal company until after the loaded cars moved down the siding to be taken out. The proof fails to show that the brake on this car was defective to such an extent that it would not hold the car. The fact that the car was shunted under the tipple, the brakes set, the car half way loaded, and so remained for twenty-four hours, shows that the brake was sufficient to hold the car.

There is a meager description of the brake. It was not the wheel brake style but worked by a lever on the end of and outside the car. The working of this lever up and down winds the brake chain around a rod which throws the brake shoe in position. When tightened a ratchet plug would hold the rod tight. When this ratchet was tripped the brake was released. The only possible defect undertaken to be shown was that the ratchet tripped at a slight touch, and this (speculatively) may have been the cause of the starting of the car when the deceased climbed out of it. We use the word 'speculatively' because no one knows just what caused the car to move.

The eleven year old sister was the only person nearby at the time of the accident. About 4:30 p. m. the two went over to the tipple to get sand from a pile near the tipple. She said that the brother said he was going on the cars 'to be excused.' 'He went up the ladder on the side next to the creek and went across and the car started out; I don't know whether he fell off or jumped off.' She said he had been up there 'a right smart while' before the car started to move, and that she did not see him 'get hold of anything.' She was on the ground and could not see the boy. She said the superintendent passed while they were around the spot and said, 'Aint you all afraid you will get dirty?' but did not tell them to go away. However, she said they were both then on the steps down next to the creek, away from the car and tipple 'fixing to make a play house.'

While several witnesses testified that they arrived at the spot a few minutes after the accident none of them describe how the car injured him; it is surmised that he either fell or jumped when the car began to move, and in the direction it was moving and was crushed. Much of the proof went toward showing that it was a custom of children to play around the tipple, without interference by the employees of the company. There was also considerable proof undertaking to show that the brake on the gondola was defective. This proof failed, except to the extent noted.

It was under this substantially stated proof that the court held a failure to show negligence. The court analyzed the evidence in relation to the coal company's activities and found that the proof showed that the brake would and did hold. He surmised, as we do, that the boy must have 'touched some instrument that let the brake loose,'...