L. & N.R. Co. v. Carter
| Decision Date | 14 December 1928 |
| Citation | 226 Ky. 561 |
| Parties | Louisville & Nashville Railroad Company v. Carter. |
| Court | United States State Supreme Court — District of Kentucky |
3. Appeal and Error. — Party who desires more ample definition in instructions should request additional instruction, and on failing to do so cannot complain that instruction given was inadequate.
4. Appeal and Error. — Jury's verdict is final as to issue which they must necessarily have determined in arriving at verdict.
5. Master and Servant. — In action by brakeman against railroad employing him, which was in receiver's hands, and another railroad for injuries, evidence that solvent road directed reorganization of plaintiff's employer, and controlled its policies and rules through dummy stockholders, held to make issue for jury of solvent railroad's liability for negligence of plaintiff's employer.
6. Corporations. — Courts do not hesitate to ignore corporate fiction and to draw aside veil of corporate entity when necessary to reach justice and prevent fraud.
7. Master and Servant. — Railroad owes train employees, who are not themselves charged with discharging railroad's duty of care, same duty of exercise of care to avoid collision with traveler on public crossing as it owes to persons not employees.
8. Master and Servant. — Measure of railroad's duty to employees to exercise ordinary care to prevent collision at dangerous crossings is maintenance of warning device and statutory signals tending to prevent collisions.
9. Master and Servant. — Where bell, required to be maintained by railroad in exercise of ordinary care to prevent collisions at dangerous crossing, became out of order, and so remained, railroad was not exercising duty of ordinary care owed to employees to prevent collision.
10. Master and Servant. — In action against railroad by brakeman injured in crossing collision, evidence of railroad's negligence in permitting electric bell at dangerous crossing to remain out of order held to make issue for jury.
11. Master and Servant. — In brakeman's action against railroad for injuries in crossing collision, defense of railroad that employee assumed risk of injury, resulting from employer's negligence in failing to repair electric bell at dangerous crossing, held barred, where assumption of risk was not pleaded.
12. Limitation of Actions. — In brakeman's action against railroad for injuries, promise of railroad just after accident that, if brakeman would not immediately sue, it would pay his hospital and doctor bills and wages, if proved, was complete answer to defendant's plea of limitation.
13. Release. — In action by brakeman against railroad for injuries, question whether agreement whereby railroad paid brakeman's hospital and doctor bills, and kept him on pay roll, was in consideration of release or of promise to defer suit, held for jury.
14. Appeal and Error. — Where it was practically conceded that disrepair of crossing bell caused injury, instruction, in brakeman's action against railroad for injuries, that carrier had duty to maintain electric crossing bell in good condition, or use other means as ordinary care might require to prevent crossing collisions, if erroneous, held not prejudicial.
15. Trial. — In brakeman's action against railroad for injuries, instruction that jury, if it should find at all for plaintiff, should credit any finding by sum which had been paid him theretofore by way of wages, held not erroneous as ignoring defense of release, where such defense was submitted by another instruction.
16. Damages. — $15,000 damages to brakeman under 30 for broken leg, which had to be amputated, causing great pain and suffering, and resulting in permanent impairment of his power to earn money, previously earned at rate of $125 to $150 per month, held not excessive.
Appeal from Franklin Circuit Court.
WOODWARD, WARFIELD & HOBSON, ASHBY M. WARREN and MORRIS & JONES for appellant.
LESLIE W. MORRIS and MARION RIDER for appellee.
Affirming.
From a judgment in favor of the appellee in the sum of $22,895.25, subject to a credit of $7,895.25, for personal injuries received by him while working as a brakeman on a freight train which appellee claimed the appellant was then operating, the latter brings this appeal.
The appellee, for a number of years prior to the accident of which he complains, was an extra brakeman and extra fireman in the employ of the Frankfort & Cincinnati Railroad Company, which we shall hereafter refer to in this opinion as the F. & C. The F. & C. extended from Frankfort, Ky., through Georgetown, Ky., to Paris, Ky. On August 26, 1921, the appellee was working as a brakeman on a freight train bound from Frankfort to Paris. The F. & C. possessed but one engine, and this engine was required to do all of the work which this railroad had to do, not only that of pulling its freight and passenger trains between termini, but also that of what little switching the road had to do. It is conceded that in the train which left Frankfort for Georgetown there was an interstate shipment, for which reason the appellee, while acting as brakeman at least on that train, was engaged in interstate commerce. When the train reached Georgetown, it stopped, and the engine was uncoupled.
What next happened is in dispute. The appellant claims that out of the train which came from Frankfort to Georgetown two empty box cars were removed, and then coupled to an empty box car which was standing at the Georgetown station. These three empty box cars were then pushed by the engine over to the Southern Railroad junction, about one-half mile away, for the purpose of delivery to the Southern Railroad. Appellant rests this claim on a conductor's report, which was filed by it over appellee's objection on the trial of this action, and which purported to cover the movement of this train from Frankfort to Paris. On this report there appears as moving in the train which left Frankfort box car "So. Ry. 16015." The appellant's conductor testified that he was on the cut of cars being pushed over to the Southern Railroad when the accident happened and was riding "on the third car from the end, which was Southern 16015."
From this appellant argues that it established that the three empty box cars being moved to the Southern depot comprised one of the cars that had moved from Frankfort to Georgetown, and, as this part of the trip was undoubtedly interstate, the character of the trip was therefore not changed by the movement from the Georgetown station to the Southern depot. On the other hand, the appellee, when put upon the stand in rebuttal, testified that these three empty box cars were picked up at Georgetown and pushed over to the Southern depot. There was earlier testimony to the effect that, when this train reached Georgetown from Frankfort, the crew first set out the loaded freight car containing the interstate shipment referred to, then cut the engine off from the train and coupled it up "to these three cars (the empty box cars in question) ahead of us, and then pushed them toward the Southern depot."
Thus we see the proof as to where these three cars came from was in conflict. If the jury believed the appellant's proof, then it was bound to find that this was an interstate movement. But, if it accepted the appellee's proof, then, as these three empty box cars comprised no part of the train bound from Frankfort to Georgetown or Paris, and as their sole movement was from the Georgetown station to the Southern junction, entirely intrastate, and as it was not necessary that these cars be moved in order that the Frankfort to Paris train could proceed on its way, and as the F. & C., having but one engine, had to use it to move these three box cars, not for the purpose of expediting in any way the original journey on which this engine had started nor as any part of that journey, but only to perform a switching service in no wise connected with that journey, the jury was authorized to find, as it did, that appellee was engaged at the time of his accident in intrastate commerce. The court by instruction A peremptorily told the jury that, if the appellee was at the time of his injury engaged in interstate commerce, as defined in that instruction, then it should find for the appellant; but, if appellee was not so engaged in interstate commerce, then it should be governed in its decision by the other instructions given in the case.
No complaint is made that this instruction A, at least as far as it went, improperly defined interstate commerce. If the appellant under our practice desired any more ample definition of interstate commerce, it should have offered one, and this it did not do. Having failed to do so, it may not now complain of the lack of a more ample definition. Hatfield v. Payne, Agent, 195 Ky. 310, 242 S.W. 32. See, also, Kroger Grocery & Baking Co. v. Hamlin, 193 Ky. 116, 235 S.W. 4. Indeed, on this branch of the case, appellant does not even now criticize the instruction, except to the extent that it insists that the instruction was erroneous, because it was entitled to a peremptory instruction. Of course, appellant was entitled to a peremptory instruction only if the evidence was...
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