L. & N.R. Co. v. Noble's Administratrix

• Decision Date: 16 May 1930
• Citation: 234 Ky. 504
• Parties: Louisville & Nashville Railroad Company v. Noble's Administratrix.
• Court: United States State Supreme Court — District of Kentucky

234 Ky. 504

Louisville & Nashville Railroad Company v. Noble's Administratrix.

Court of Appeals of Kentucky.

Decided May 16, 1930.

1. Commerce. — Brakeman working on train, nearly all cars of which were going outside state, was engaged in "interstate commerce," though particular engine and crew would not take them outside state (Federal Employers' Liability Act [45 USCA secs. 51-59]).

2. Death. — Word "dependent" in federal act, classifiying beneficiaries of deceased employees, refers only to next kin (Federal Employers' Liability Act [45 USCA secs. 51-59]).

Federal Employers' Liability Act (45 USCA secs. 51-59) imposes liability on interstate carriers for wrongful death of their employees for the benefit of the surviving spouse and children, "and, if none, then of such employee's parents; and, if none, then of the next of kin dependent upon such employee."

3. Election of Remedies. — Deceased employee's mother, erroneously electing to proceed under state compensation status, may withdraw election and conform pleadings to federal act by showing whether deceased left widow or children, and, if not, whether his

father is alive (Federal Employers' Liability Act [45 USCA secs. 51-59]).

4. Commerce. — State laws were superseded by Federal Employers' Liability Act so far as covering same field (Federal Employers' Liability Act [45 USCA secs. 51-59]).

5. Courts. — Measure of damages approved by federal Supreme Court should be given jury in action under federal statute for employee's death (Federal Employers' Liability Act [45 USCA secs. 51-59]).

Appeal from Perry Circuit Court.

ASHBY M. WARREN, H.T. LIVELY, J.P. HAMILTON, JESSE MORGAN and C.S. LANDRUM for appellant.

C.A. NOBLE and J.T. BOWLING for appellee.

OPINION OF THE COURT BY DRURY, COMMISSIONER.

Reversing.

The Louisville & Nashville Railroad Company has appealed from a judgment for $10,000 recovered against it by the administratrix of Farish Noble for the alleged negligent killing of her intestate.

Farish Noble was employed by the Louisville & Nashville as a brakeman, and in the early morning of November 17, 1927, was head brakeman on a Louisville & Nashville train known as "1453 work extra," which was operating on a branch road extending up First creek. The crew was composed of Conductor Holliday, Flagman Bently, Brakemen Noble and Jennings, and an engineer and fireman.

On this branch road they had gathered up 41 cars of coal, 2 of which were destined for a point in Kentucky and 39 for points without the state. The morning was dark and foggy and it was raining. The fatal accident occurred about 4:45 a.m., and Noble was instantly killed. The circumstances are these: This crew had instructions when they reached Typo, the point of junction with the main line, to call the dispatcher and get orders for disposition of this coal. When they got there Jennings did so, and was directed to place the cars having steel underframes upon storage track No. 1 at the Crawford yards and those with wooden underframes upon storage track No. 3.

The crew then proceeded with this train until they reached the Crawford yards, the caboose was uncoupled, and Bently was sent back north to protect the caboose from any train that might be following them.

The conductor was making up his report for the yardmaster. These brakemen and the engine crew all riding together on the engine proceeded to the south end of the Crawford yards. There the brakemen got off of the engine; the engine crew went on south with the train until they had cleared the switch opening the lead track in the Crawford yards. Jennings told Noble to open the switch on that track for storage track No. 1, while Jennings started south along the train to locate the cars having wooden underframes.

Noble threw the switch for the lead track, but for some unknown reason did not throw the switch for storage track No. 1. The train was backed presently, but instead of backing into the storage track No. 1, it entered storage track No. 4 and collided with a number of cars standing on that track, as a result of which Noble, who was riding the end of this backing train (for the purpose of protecting it, so his administratrix pleads), was killed, and to recover for his death this suit was brought.

Defendant alleged it was engaged in interstate commerce, and that many cars of coal in this train were going to points outside of the state; the proof showed 39 out of the 41 cars were going out of the state. That is not denied; therefore Noble when working on this train was also engaged in interstate commerce. Shanks v. Delaware, L. & W.R. Co., 239 U.S. 556, 36 S. Ct. 188, 60 L. Ed. 436, L.R.A. 1916C, 797; Columbia & P.S.R. Co. v. Sauter (C.C.A.) 223 F. 604; Illinois C.R.R. Co. v. Rogers (C.C.A.) 221 F. 52; Cincinnati, N.O. & T.P.R. Co. v. Goode, 155 Ky. 153, 159 S.W. 695. See general discussion of this question in Louisville &...