L. & N.R. Co. v. Mannin

• Decision Date: 17 December 1926
• Court: United States State Supreme Court — District of Kentucky
• Parties: Louisville & Nashville Railroad Company v. Mannin.

217 Ky. 460

Louisville & Nashville Railroad Company v. Mannin.

Court of Appeals of Kentucky.

Decided December 17, 1926.

Master and Servant — Evidence of Railroad's Negligence as to Roundhouse Helper Falling off Locomotive Held Insufficient for Jury. — In action for injuries received by electrical helper falling off locomotive while in roundhouse allegedly due to escaping steam, evidence of railroad's negligence held insufficient for jury.

Appeal from Wolfe Circuit Court.

WOODWARD, WARFIELD & HOBSON, ASHBY M. WARREN, A.F. BYRD, G.S. LANDRUM, and HUNT, NORTHCUTT & BUSH, for appellant.

E.C. HYDEN for appellee.

OPINION OF THE COURT BY JUDGE REES.

Reversing

Appellee recovered judgment for $25,000.00 in the Wolfe circuit court in an action against appellant for injuries alleged to have been received by him as a result of its negligence while he was employed by it as electrical helper in its roundhouse at Hazard, Kentucky.

Appellant relies on a number of grounds for reversal but as we have concluded that the trial court should have peremptorily instructed the jury to find for it, it will not be necessary to consider or determine the other questions discussed in appellant's brief.

It was appellee's duty as an electrical helper to assist in keeping the electrical appliances attached to apppellant's engines in repair. At the time he claims to have received the injuries he was on top of one of appellant's engines oiling the generator cups which are located on the rear part of the boiler and immediately in front of the cab. Appellee testified that while thus engaged steam blew up in his face blinding him and being unable to locate the ladder on the side of the engine, he fell feet foremost, the fall resulting in injuries that are serious and permanent. He continued to work two or three weeks but on March 30, 1923 he was taken ill while at the roundhouse and was removed to a hospital, the accident having occurred on the night of March 15, 1923.

On April 10, 1923 he was examined by Dr. Wilgus Bach who testified that appellee gave a history of dysentery and that a week later he gave a history of falling from one of appellant's engines; that appellee said he had been dizzy; that his head was swimming when he fell and that at the time the engine was standing still. Dr. Bach testified that in his opinion appellee was then suffering from bacillary dysentery. Appellee denied making any of these statements to Dr. Bach.

It is appellee's theory that one of appellant's employees either negligently started the engine without giving him notice and caused him to fall or, in preparing to start the engine, negligently caused steam to be emitted therefrom blinding appellee and thus causing him to fall. Appellee at no time testified that the engine had moved before he fell but in answer to a number of questions said that the engine moved immediately after he fell. On direct examination he was asked:

"Q. Where did this steam come from, if you know, that came out there? A. It come right up in my face, I reckon it come — I don't know where it come from without it come from the boiler, come in my face, the first I seen of it."

And on cross-examination he was asked the following questions:

"Q. Do you say now that the engine moved before you got off of it? A. By the time I hit the floor walk or what you might call it, by the time I hit there, I will say and looked around, the engine was going.

"Q. But did it move before you got off or fell off? A. I won't state about that, wouldn't be positive about that at all.

"Q. You never have stated, either in your testimony to Mr. Hyden or in your testimony on the other trial, you never have stated that the engine moved before you fell off, have you, A. I told him I wouldn't be positive about it.

"Q. Did you tell Mr. Hyden you wouldn't be positive about it, A. I said I didn't know.

"Q. It was not the movement of the engine that made you fall off, was it? A. It was that steam blinded me.

"Q. I asked you if it was the movement of the engine that made you fall off? A. I won't state about that.

"Q. How? A. I won't state about that to be positive, it moved about that moment."

There was no other witness to the accident and there is no evidence tending to show that appellee's fall was caused by any movement of the engine. Any negligence, therefore, on the part of appellant on which appellee can rely for a recovery is confined to the escape of the steam.

The proof disclosed that the only places from which steam in appreciable quantities could escape from the top of the engine were from the safety or pop-off valve, which is located about three feet forward from the cab and between which and the cab appellee was working and from the valve controlling the whistle. The safety or pop-off valve is a mechanical appliance attached to all engines which operates automatically and permits steam to escape when a certain pressure is reached and thus prevents an explosion of the boiler. Appellee testified that the whistle was not blown. It is not shown that in preparing to start the engine steam might be caused to escape from other places that would reach appellee at the place he claimed to be working. Appellee invokes the doctrine of res ipsa loquitur.

The rule, res ipsa loquitur, in its strict sense rests upon common experience that an accident of the kind in question does not occur in the absence of negligence. In discussing the application of the rule to controversies between master and servant, in Louisville & Nashville Railroad Company v. Allen's Administrator, 174 Ky. 736, 192 S.W. 863, we said:

"It may...