L. & N.R. Co. v. Brandenburg
| Decision Date | 23 May 1924 |
| Citation | 207 Ky. 689 |
| Parties | Louisville & Nashville Railroad Company v. Brandenburg, By, etc. |
| Court | United States State Supreme Court — District of Kentucky |
1. Trial — Where Facts Undisputed, Duty of Court to Determine Legal Effect. — Where facts are undisputed, it is duty of court and not jury to determine their legal effect and law applicable.
2. Commerce — Railroad Held Engaged in Interstate Commerce. — Proof, that defendant railroad, sued for injuries to servant regularly operated freight and passenger trains between points in the state and points out of the state established the fact that it was a common carrier engaged in interstate commerce.
3. Commerce — Section Hand Unloading Ties Along Main Track Engaged In "Interstate Commerce." — Section hand, unloading ties along main line track of interstate carrier, to be used in its repair, was engaged in "interstate commerce," under federal Employers' Liability Act (U.S. Comp. Stats., sections 8657, 8665).
4. Evidence — Statement as to Purpose of Unloading Ties Held Statement of Fact and Conclusive. — Testimony of section hand that ties being unloaded along a main line track were to be used in the track was a statement of fact necessarily within knowledge of witness, and was conclusive, notwithstanding subsequent answer of doubtful meaning.
5. Commerce — Federal Employers' Liability Act Exclusive. — The federal Employers' Liability Act (U.S. Comp. Stats., sections 8657, 8665) is exclusive, and a section hand engaged in interstate commerce must sue under it for personal injuries received.
6. Master and Servant — Direction of Verdict Against Plaintiff with Opportunity to Amend Petition in Common-Law Action Proper, where Federal Act Applies. — Where section hand brought commonlaw action for injuries, and it appeared on trial that defendant and plaintiff were engaged in interstate commerce, court should have sustained defendant's motion for directed verdict, but plaintiff should be given opportunity to amend petition.
7. Trial — Duty of Court to Correctly Instruct, though Request Not in Correct Form. — In action by section man for injuries while engaged in interstate commerce, it was duty of court to correctly instruct jury under federal Employers' Liability Act (U.S. Comp. Stats., sections 8657, 8665), though defendant's tendered instruction under that act was not correct in form and in substance.
8. Commerce — Improper under Federal Act to Permit Amendment to Show Parent Assigned Right of Action to Injured Employee for Loss of Service. — In action by section hand injured while engaged in interstate commerce, it was improper and prejudicial to permit plaintiff to file an amended petition alleging that his widowed mother had assigned to him her right of action for loss of his services, because under federal Employers' Liability Act (U.S. Comp. Stats., sections 8657, 8665) mother had no cause of action.
Appeal from Lee Circuit Court.
A.M. WARREN, WOODWARD & WARFIELD, HUNT, NORTHCUTT & BUSH and ROSE & STAMPER for appellant.
J.M. McDANIEL and HOBSON & HOBSON for appellee.
Reversing.
Appellee, Lucien Brandenburg, brought this action by his guardian against the L. & N. Railroad Company, appellant herein, to recover damages for personal injuries sustained while in its employ. The uncontradicted evidence showed that on or about May 5, 1921, acting under the orders of his foreman, appellee was unloading railroad ties from a box car which was part of a work train then standing still on appellant's main track near Willows Shoals in Lee county, Kentucky. While he was thus working between the piles of ties inside the car appellant's employees negligently ran another train into the one on which he was working, knocking a number of ties over against him and on him and inflicted the injuries of which he complained. The jury found a verdict for appellee for $10,000.00, and from the judgment entered thereon appellant prosecutes this appeal.
Appellant earnestly insists that this action should have been brought and tried under the federal Employers' Liability Act because, it is asserted, both parties are shown by the evidence to have been engaged in interstate commerce at the time of the accident. A careful consideration of the record convinces us of the soundness of this contention, and in failing to so hold the lower court committed an error which necessitates the reversal of the judgment in this case. Appellee argues vigorously that even if the court did so err, which it does not admit, the error was waived by appellant's failure to either tender or ask for an instruction submitting to the jury the question of whether or not the parties were engaged in interstate commerce at the time of the accident, and that having failed to do so it cannot now complain of the action of the court. This would be sound had there been any conflict in the evidence upon this question, but there was none and consequently there was no issue of fact to be tried by the jury. Where the facts are undisputed it is the duty of the court and not of the jury to determine their legal effect and the law applicable to the state of facts proven.
The petition in the case at bar merely alleges that the appellant, L. & N.R.R. Company, is a corporation with power to sue and be sued and to contract and be contracted with, and that on or about May 5th, 1921, the appellee was employed by the appellant, and while removing railroad ties from a box car appellant's agents "negligently and carelessly ran another train against the train of which said box car was a part and caused some of said ties to be thrown on and against him and thereby caused him to be permanently injured," etc.
It will be seen there was no allegation that the appellant was a common carrier or that it was engaged in either interstate or intrastate commerce, or that it was engaged in commerce at all; so that on its face the action was merely one at common law between master and servant, if, indeed, the petition sets up a cause of action at all. Certainly it does not set up one under either the federal or state Employers' Liability Act, nor did the appellant plead either act by way of defense. The answer consisted simply of a general denial of all the allegations relative to the accident and the resulting injuries, and upon these issues the case went to trial.
The only issue upon which there was any dispute in the evidence was as to the extent of appellee's injuries, and with that we are not concerned at this time. Our sole consideration is whether or not the uncontradicted evidence brings this action within the purview of the federal act, and that it does do so a brief examination of appellee's evidence will clearly demonstrate. The proof showed that appellee had been a section hand in the employ of appellant for some seven or eight months prior to the accident. At the time of the accident he and several other employees were unloading railroad ties from a box car which was part of a work train engaged in hauling gravel and ties along the main track of appellant's railroad. Although counsel contends otherwise, it is clearly proven both by appel...
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