Kentucky & Indiana Bridge & Railroad Co. v. Sydor

• Decision Date: 15 November 1904
• Citation: 119 Ky. 18,82 S.W. 989
• Parties: KENTUCKY & I. BRIDGE & R. CO. v. SYDOR.
• Court: Kentucky Court of Appeals

82 S.W. 989

119 Ky. 18

KENTUCKY & I. BRIDGE & R. CO. v. SYDOR.

Court of Appeals of Kentucky.

November 15, 1904

Appeal from Circuit Court, Jefferson County; Chancery Division.

"To be officially reported."

Action by Joseph Browder Sydor, administrator of the estate of Elijah T. Renfro, deceased, against the Kentucky & Indiana Bridge & Railroad Company. From a judgment for plaintiff defendant appeals. Affirmed.

Humphrey Burnett & Humphrey, for appellant.

Bennett H. Young, L. R. Yeaman, and Marion W. Ripy, for appellee.

O'REAR J.

Appellee Sydor, as administrator of Elijah T. Renfro, filed this suit against appellant to recover for the death of his intestate which was charged to have occurred by reason of its gross negligence. The defendant traversed the allegations of the petition, and pleaded contributory negligence on the part of Renfro, but for which he would not have been injured. It was also pleaded that Renfro was working with one of appellant's servants employed in the same grade of service and engaged in the same character of labor, neither being superior in authority to the other, and that the accident which caused the death of Renfro was due either wholly to the negligence of his fellow servant or to his negligence together with the negligence of the fellow servant. The jury to whom the case was submitted found a verdict in favor of the plaintiff in the sum of $6,000, on which judgment was entered, and, the defendant's motion for a new trial being overruled, it appeals.

The facts of the case are as follows: The plaintiff's intestate and John L. McDowell were car repairers in the service of the Southern Railway Company. They were directed by their foreman, O. L. Harris, to make certain repairs to a freight car, which was at the time in the yard of the defendant, upon one of the tracks sometimes used as a repair track. To make the repairs it was necessary for them to get under the car. It was customary for workmen engaged in repairing a car to place a signal upon it or upon the track to indicate to the switching crews in the yard that men were working on the car, and that no engine or cars should be allowed to come in contact with it. The signal used for this purpose was a blue flag, and was well understood by the employés in the yard. McDowell was proceeding to put out his flag preparatory to going under the car, when the defendant's yardmaster, George A. Zumer, told him not to put the flag up. McDowell told Zumer he would not until he was through switching. The engine went in and took out a coal car and took it in to the Southern yard. McDowell then put up his flag, and he and Renfro went under the car, and proceeded to repair it. About a half hour afterwards, and just as they had finished the work, when McDowell had come from under the car and Renfro was about to come out, but had not gotten out, a train of cars under the control of the defendant was kicked upon the track striking the car upon which Renfro had been at work just as he was in the act of coming from under it, and killing him instantly. No notice of the approach of the train was given, and no lookout maintained on the rear cars as they were kicked in. McDowell had first placed the flag upon a car in front of the one he was working on, but his attention being called to the fact that, as the track was curved, the flag here would be obscured by a car standing on another track, he walked down the track about 100 feet and set up the flag in the center of the track, attaching it to an iron rod which he stuck down between the cross ties, the flag being about 4 feet above the ground. The engine which kicked the cars in was some distance from the flag, still further around the curve, there being 16 cars in the train, and the engineer could not see the flag by reason of an office building which stood between him and the flag, in consequence of the curve of the track. As there was no lookout on the cars, the flag was not seen, and was run over by the cars as they were kicked in. The flag was found after the accident between the rails. There was proof by the defendant that the flag was not securely set up, and that it should have been placed further around the curve and down near the office, so that the office would not have obstructed the view of it. It was something over 100 feet from where the flag was set to the point indicated. The proof for the plaintiff was that the flag was securely set up, and was at the proper place. Two witnesses saw the flag standing between the tracks shortly before the cars were kicked in, and it appeared, from its position when found after the accident, to have been knocked down by the train. The verdict of the jury should be received as settling the disputed facts in appellee's favor. McDowell and Renfro were fellow servants in the same grade of service, working together in repairing cars. Before going under the car, Renfro asked McDowell if he had put out the flag, and he was informed by him that he had done so. It was the duty of Renfro, no less than of McDowell, to put out the flag before going under the car. The cars were kicked in at a low rate of speed, and, if an outlook had been kept on them, the flag could have been seen, and the collision avoided; but it was not customary to have a man on the rear end of a train of cars when kicked in on a track in the yard.

The defendant moved the court to give the jury this instruction which was refused by the court: "(12) The court instructs the jury that if they believe from the evidence that Renfro and McDowell were associated in the work of repairing the car under which Renfro was killed, and that the said Renfro left to McDowell the task of giving the usual warning of their presence under said car, then the said Renfro was bound for the manner in which the said McDowell performed this task; and if the jury believe from the evidence that McDowell was guilty of negligence in the manner in which he gave the said warning, if he gave any warning, and that his negligence contributed to the accident in which Renfro lost his life, so that such accident would not have happened except for the negligence of the said McDowell contributing thereto, the law is for the defendant, and the jury shall so find." The court then of its own motion, and over the objection of the defendant, gave to the jury the following instructions: "(1) If the jury shall believe from the evidence that the agents or servants of the defendant, the Kentucky & Indiana Bridge & Railroad Company, by negligence on their part caused the cars of the defendant company under their control to be backed against the car under which the plaintiff's intestate was working, and that by reason of such negligence (if any there was) on the part of defendant's said agents or servants the plaintiff's intestate lost his life, then the law is for the plaintiff, and the jury shall so find, unless...