Jones v. Southern Ry. in Kentucky

• Decision Date: 08 May 1917
• Parties: JONES v. SOUTHERN RY. IN KENTUCKY.
• Court: Kentucky Court of Appeals

194 S.W. 558

175 Ky. 455

JONES v. SOUTHERN RY. IN KENTUCKY.

Court of Appeals of Kentucky.

May 8, 1917

Appeal from Circuit Court, Anderson County.

Action by Tom Jones against the Southern Railway in Kentucky. Judgment for defendant, and plaintiff appeals. Affirmed.

Edwards Ogden & Peak, of Louisville, and Lillard Carter, of Lawrenceburg, for appellant.

Humphrey Middleton & Humphrey, of Louisville, and Willis, Todd & Bond of Shelbyville, for appellee.

THOMAS J.

The appellant (plaintiff below), a colored man over 50 years of age, was at work for appellee (defendant below) as a section hand, when he sustained the injuries to recover damages for which he brought this suit. He had been engaged in that work for more than 12 years, and was therefore an experienced hand, not only as to the way and method by which that character of work should be done, but was also familiar with the dangers attendant upon his duties in prosecuting it.

A part of the road which was under the control of plaintiff's crew of which one Thomas was foreman was in the village of Tyrone, Ky. and at which place a spur track leads off from the main line to Ripy Bros.' distillery. A wrecked freight train on one Saturday evening tore up the track at the point where the spur left it, and likewise damaged the spur track. The main line was repaired by placing under it new ties in place of the destroyed ones produced by the wreck, which was done on Sunday, and on that day some new ties had been placed under the spur track running to the distillery. In placing the ties under the tracks there was necessarily thrown upon them in making excavations some dirt and cinders, but the spur track was not lined up until the following Monday, which was January 25, 1915. After the ties had been placed, and before the work of lining up the track had commenced on Monday, there came a rain and sleet, which formed a crust over the dirt and cinders that had been thrown upon the ties when they were placed under the track. In order to line up the rails, which was the work at which plaintiff was engaged when he received the injuries, it was necessary to nip the ties, which means to prize them up to the rail and also to pull the rail to a point on the ties where it will be of the proper gauge, and where it may be spiked to the ties. The crew, while engaged in this business, was divided into pairs, and the plaintiff and the section boss, who was performing the duties of a section hand at the time, composed one pair of the workers, and they were engaged in lining up the track of the spur. The plaintiff was nipping the ties by placing a lever under their ends so as to prize them up to the rail, and his companion, the section boss, would stick a pick into the tie near the rail and prize down on the handle so as to pull the rail to its proper place. The section boss in making a stroke with his pick into one of the ties upon which there was ice and perhaps cinders, as indicated, caused some of those substances to fly and a small portion of it struck the plaintiff in one of his eyes, resulting in the loss of its sight. Claiming that the accident to him was the result of the gross negligence and carelessness of the foreman, plaintiff brought this suit to recover from the defendant damages to the amount of $10,000.

The answer, in the first paragraph, denied the allegations of the petition as to negligence of any character, and in the second paragraph pleaded a compromise. In the third paragraph it relied upon contributory negligence of the plaintiff, and in a fourth paragraph it defended upon the ground that the injury was produced from a cause which the plaintiff assumed in entering the employment. Appropriate pleadings put in issue these defenses, but before trial an amended petition was filed, seeking a recovery under the federal statute known as the Employers' Liability Act, it being therein alleged that, notwithstanding the defendant was a Kentucky corporation, it was at the time engaged in interstate commerce, as was also the plaintiff, when he received his injuries.

The amendment was denied, and after the evidence had been heard, the court announced that he did not believe the case was one coming within the purview of the federal statute, whereupon a second amended petition was filed withdrawing the first one, and the court then gave a peremptory instruction to find for the defendant, which was done, and to reverse the judgment rendered upon that verdict the plaintiff prosecutes this appeal.

A number of questions are presented and urged upon us by counsel for both parties, but under the conclusion we have reached we do not deem it necessary to discuss but one, which is that of assumed risk.

It is insisted by counsel for appellee that under the doctrine announced by this court in the cases of Sinclair v. I. C. R. R. Co., 140 Ky. 152, 130 S.W. 978, Whitson v. American Bridge Co., 158 Ky. 816, 166 S.W. 603, C. & O. Ry. Co. v. Shamblen, 166 Ky. 793, 179 S.W. 837, Burch v. Louisville Car Wheel & Railway Supply Co., 146 Ky. 272, 142 S.W. 414, Isaacs v. L. & N. R. R. Co., 167 Ky. 256, 180 S.W. 345, O'Bannon's Adm'r v. L. & N. R. R. Co., 6 S. W. 434, 9 Ky. Law Rep. 706, and other like cases, that the section boss who was working with plaintiff at the time as a section hand was nothing more nor less than a fellow servant with plaintiff on that occasion, and that the fellow-servant rule is included in and a part of the doctrine of assumed risk. For many purposes the fellow-servant rule is a part of and grows out of the assumed risk doctrine, and it may be conceded that those cases establish the fact that for the time being the plaintiff and the section boss were fellow servants.

Another insistence which plaintiff's counsel make is that the court erred in holding that this case is not one coming within the purview of the Employers' Liability Act, which, if it did, would deprive the defendants of the defense that the injury was produced by the acts of a fellow servant. This insistence raises a nice question under the facts found in the record, but we deem it unnecesary to determine the question thus raised, because if the injury complained of was the result of an assumed risk, it is equally efficacious, as a defense whether the suit be prosecuted under the federal Employers' Liability Act, or under the remedy afforded by the laws of this state.

The Employers' Liability Act does not deprive the master of the defense of assumed risk, except where the injury is the result of a failure of the carrier to comply with some federal statute enacted for the promotion of safety appliances. This is not only according to the terms of the statute itself, but it has been so held many times by this court, as well as the Supreme Court of the United States. L. & N. R. R. Co. v. Patrick, 167 Ky. 118, 180 S.W. 55; Glenn v. C., N. O. & T. P. Ry. Co., 157 Ky. 453, 163 S.W. 461; C. & O. Ry. Co. v. De Atley, 159 Ky. 687 167 S.W. 933; Truesdell v. C. & O. Ry. Co., 159 Ky. 718, 169 S.W. 471; L., H. & St. L. Ry. Co. v. Wright, 170 Ky. 230, 185 S.W. 861; Seaboard Air Line v. Horton, 233 U.S. 492, 34 S.Ct. 635, ...