L. & N.R. Co. v. Jolly's Admrx.

CourtUnited States State Supreme Court (Kentucky)
Writing for the CourtJudge Willis
Citation232 Ky. 702
Decision Date14 January 1930
PartiesLouisville & Nashville Railroad Company v. Jolly's Administratrix.
232 Ky. 702
Louisville & Nashville Railroad Company
v.
Jolly's Administratrix.
Court of Appeals of Kentucky. (Common Law and Equity Division).
Decided January 14, 1930.

1. Commerce. — The test of employment in "interstate commerce" is whether employee at time of injury is engaged in interstate transportation or in work so closely related to it as to be practically part of it under Employers' Liability Act 1908, secs. 1-8 (45 USCA secs. 51-58) and section 9, as added by Act April 5, 1910, sec. 2, 36 Stat. 291 (45 USCA sec. 59), and each case must be determined on its own peculiar facts, and no formula can be found invariable by circumstances or free from confusion by them in application.

2. Commerce. — Problem whether employee was engaged in interstate commerce under Employers' Liability Act 1908, secs. 1-8, (45 USCA secs. 51-58), and section 9 as added by Act April 5, 1910, sec. 2, 36 Stat. 291 (45 USCA sec. 59), at time of injury is not to be solved by considering mere physical position of employee at moment of injury, but by character of work he was doing and its immediate purpose and effect, and if tendency of particular act is to expedite, further, or facilitate movement in interstate commerce, or to secure its safety, or if injury to workman operates to delay, hinder, or interfere with free movement of interstate trains or traffic, employee is engaged in interstate commerce.

3. Commerce. — If an employee is hurt in course of his employment while going to car to perform an interstate duty, or if he is injured while preparing an engine for an interstate trip, he is entitled to benefits of Employers' Liability Act 1908, secs. 1-8 (45 USCA secs. 51-58), and section 9, as added by Act April 5, 1910, sec. 2, 36, Stat. 291 (45 USCA, sec. 59), although accident occurred prior to the actual coupling of engine to interstate cars.

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4. Commerce. — Circumstance that engine which hostler was coaling for purpose of having engine pull interstate cars might be intercepted before reaching interstate cars, or that train crew on inspection might reject it or require further preparation, or that actual preparation of engine required several acts in addition to coaling, does not alter its character as instrument of interstate commerce, under Employers' Liability Act 1908, secs. 1-8 (45 USCA secs. 51-58), and sec. 9, as added by Act April 5, 1910, sec. 2, 36 Stat. 291 (45 USCA sec. 59), to which it had been definitely assigned.

5. Commerce. — Fact that an interstate trip had just been completed by engine hostler who received injuries when locomotive collided with another, and engine had been recently in roundhouse for repairs, which had been finished, held insignificant in fixing character of hostler's work at time of injury, with respect to whether it was in interstate commerce or not under Employers' Liability Act 1908, secs. 1-8 (45 USCA secs. 51-58) and section 9, as added by Act April 5, 1910, sec. 2, 36 Stat. 291 (45 USCA sec. 59).

6. Commerce. — Nature of work of engine hostler when injured by scalding water as result of collision of locomotive with another is characterized by ultimate purpose of handling an interstate train toward which he was moving engine and to which it had been definitely directed.

7. Commerce. — "Employment in interstate commerce," under Employers' Liability Act 1908, secs. 1-8 (46 USCA secs. 51-58), and section 9, as added by Act April 5, 1910, sec. 2, 36 Stat. 291 (45 USCA sec. 59), begins when a workman on carrier's premises makes forward move to serve in that traffic, and it does not end until there is complete disassociation therefrom.

8. Commerce. — Evidence that at time engine collided with another locomotive hostler was moving it to coaling station before it was to be connected onto cars to be used in interstate commerce justified court in finding that work in which hostler was engaged when injured from scalding water was essentially part of interstate commerce, under Employers' Liability Act 1908, secs. 1-8 (45 USCA secs. 51-58), and section 9, as added by Act April 5, 1910, sec. 2, 36 Stat. 291 (45 USCA sec. 59), which carrier was conducting.

9. Appeal and Error. — Instruction not requested in trial court may not be originated on appeal in Court of Appeals.

10. Trial. — If but one conclusion as to a fact reasonably may be derived from the evidence, that fact may be assumed in framing the instruction.

11. Trial. — If the evidence respecting a fact be in conflict, or if different deductions may be derived from uncontradicted testimony, the determination of ultimate truth must be left to the jury.

12. Master and Servant. — Where evidence, in action based on Employers' Liability Act 1908, secs. 1-8 (45 USCA secs. 51-58), and section 9, as added by Act April 5, 1910, sec. 2, 36 Stat. 291 (45 USCA sec.

Page 704

59), was in conflict as to whether engine hostler who was scalded by water when engine collided with another locomotive was contributorily negligent, and most that could be said from evidence was that it afforded room for opposite deductions, it was within province of jury to determine correct conclusion to be drawn.

13. Negligence. — Under 45 USCA sec. 53, providing that contributory negligence of injured parties shall not bar recovery, but damages shall be diminished by jury in proportion to amount of negligence attributable to him, contributory negligence of employee is not bar to an action for an injury received by him, but operates only to diminish damages recoverable for injury.

14. Master and Servant. — It is only when negligence of injured servant is the sole cause of his injury that a recovery is denied him.

15. Appeal and Error. — When the correct measure of damages has been submitted to the jury, and it has made an award within evidence which is not excessive as to either of the beneficiaries or as a whole, the matter is concluded by the verdict.

16. Death. — If the aggregate of damages found is within the reasonable range of the purpose and power of injured employee to provide pecuniary benefits for his dependents, it cannot be said to be excessive.

17. Damages. — There is no mathematical rule for measurement of damages, but matter must be left to jury to fix amounts authorized by evidence, in light of decisions of Supreme Court limiting and defining elements that may enter into it.

18. Appeal and Error. — Verdict of a properly instructed jury will not be interfered with, unless it strikes judicial mind at first blush as being so grossly excessive as to manifest passion and prejudice on part of jury, where only deliberation and judgment should prevail.

19. Death. — Dependents of locomotive engine hostler who was killed from scalds when engine in interstate commerce collided with another locomotive are entitled, under Employers' Liability Act 1908, secs. 1-8 (45 USCA secs. 51-58), and section 9, as added by Act April 5, 1910, sec. 2, 36 Stat. 291 (45 USCA sec. 59), to be compensated for loss of pecuniary benefits which they had reasonable expectation of receiving from decedent if he had not been killed.

20. Death. — Probable expectancy of decedent, engine hostler, who was killed from scalds when locomotive collided with another engine, his age, health, earning capacity, earning power of money, and rate of interest realizable on prudent investments, are all matters of evidence and, were properly before jury, in action based on Employers' Liability Act 1908, secs. 1-8 (45 USCA secs. 51-58), and section 9, as added by Act April 5, 1910, sec. 2, 36 Stat. 291 (45 USCA, sec. 59), affording basis for estimation of damages to each of hostler's dependents, but these evidentiary elements were not conclusive upon jury whose finding could not be subjected to rigid mathematical limitations.

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21. Death. — Jury, in action based on Employers' Liability Act 1908, secs 1-8 (45 USCA secs, 51-58), and section 9, as added by Act April 5, 1910, sec. 2, 36 Stat. 291 (45 USCA, sec. 59), had right to consider, in estimating damages to each of dependents of engine hostler killed as result of collision of locomotive with another engine, proven value of personal services of decedent to his beneficiaries which they reasonably might have received from him and which could only be supplied by services of others for compensation when evidence is sufficient to show decedent was disposed and competent to provide benefits of that character.

22. Death. — Verdict for $5,000 for conscious pain and suffering of engine hostler, and $28,000 for death of hostler who died from scalds received when locomotive collided with another engine, apportioned at $10,000 to widow, $4,000 to oldest child, $6,000 to second child, and $8,000 to youngest child, where hostler at time of death was 31 years of age and earned during year $2,518.27, held not excessive as to either of beneficiaries or as whole.

23. Death. — Damages allowed for conscious pain and suffering endured by engine hostler as result of injury from scalds when locomotive collided with another engine are entirely separate and distinct from loss of pecuniary benefits sustained by dependent wife and children suing railroad under Employers' Liability Act 1908, secs. 1-8 (45 USCA, secs. 51-58), and section 9, as added by Act April 5, 1910, sec. 2, 36 Stat. 291 (45 USCA, sec. 59).

24. Appeal and Error. — The whole matter of reopening a case for further testimony rests in discretion of trial court which is judicial one and not arbitrary, and Court of Appeals will not interfere with its exercise unless it is palpably abused.

25. Trial. — Reopening case after argument of railroad, sued for death of engine hostler from scalds received when locomotive collided with another one, to allow plaintiff to offer evidence as to exact amount of hostler's wages for any period preceding injury, held not abuse of discretion on part of court, where incident caused no material delay and facts brought into record were known to defendant...

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18 practice notes
  • Cato v. Atlanta & C. A. L. Ry. Co, No. 13240.
    • United States
    • United States State Supreme Court of South Carolina
    • September 10, 1931
    ...to clear the track for interstate commerce, he was engaged in interstate commerce at the time of the injury." In L. & N. R. Co. v. Jolly, 232 Ky. 702, 23 S.W.(2d) 564, it was held, quoting syllabus: "Act of employee expediting, furthering, or facilitating movement in interstate commerce, or......
  • Canavin v. Pacific Southwest Airlines
    • United States
    • California Court of Appeals
    • October 28, 1983
    ...plaintiffs, including: Mobile & O.R. Co. v. Williams (1930) 221 Ala. 402, 129 So. 60, 67; Louisville & N.R. Co. v. Jolly's Adm'x (1930) 232 Ky. 702, 23 S.W.2d 564, 574; Sun Cab Company v. Walston, supra, 289 A.2d 804, 826; Peetz v. Masek Auto Supply Company (1956) 161 Neb. 588, 74 N.W.2d 47......
  • Warfield Natural Gas Co. v. Wright
    • United States
    • Court of Appeals of Kentucky
    • May 31, 1932
    ...him a helpless cripple, and the claim of excessiveness was denied. In the recent case of Louisville & N. Railroad Co. v. Jolly's Adm'x, 232 Ky. 702, 23 S.W.2d 564, where there was a separation of damages for conscious suffering and death by reason of being scalded by steam, a verdict awardi......
  • Arkell v. Baltimore & O. R. Co., No. 35748.
    • United States
    • United States State Supreme Court of Missouri
    • July 7, 1939
    ...Ann.Cas.1914C, 176; Norfolk & W. R. Co. v. Holbrook, 235 U.S. 625, 35 S.Ct. 143, 59 L.Ed. 392; Louisville & N. R. Co. v. Jolly's Adm'x, 232 Ky. 702, 23 S.W.2d 564, loc. cit. 572], and the conscious pain and suffering endured by the deceased from the time of injury until his death, two days ......
  • Request a trial to view additional results
18 cases
  • Cato v. Atlanta & C. A. L. Ry. Co, No. 13240.
    • United States
    • United States State Supreme Court of South Carolina
    • September 10, 1931
    ...to clear the track for interstate commerce, he was engaged in interstate commerce at the time of the injury." In L. & N. R. Co. v. Jolly, 232 Ky. 702, 23 S.W.(2d) 564, it was held, quoting syllabus: "Act of employee expediting, furthering, or facilitating movement in interstate commerce, or......
  • Canavin v. Pacific Southwest Airlines
    • United States
    • California Court of Appeals
    • October 28, 1983
    ...plaintiffs, including: Mobile & O.R. Co. v. Williams (1930) 221 Ala. 402, 129 So. 60, 67; Louisville & N.R. Co. v. Jolly's Adm'x (1930) 232 Ky. 702, 23 S.W.2d 564, 574; Sun Cab Company v. Walston, supra, 289 A.2d 804, 826; Peetz v. Masek Auto Supply Company (1956) 161 Neb. 588, 74 N.W.2d 47......
  • Warfield Natural Gas Co. v. Wright
    • United States
    • Court of Appeals of Kentucky
    • May 31, 1932
    ...him a helpless cripple, and the claim of excessiveness was denied. In the recent case of Louisville & N. Railroad Co. v. Jolly's Adm'x, 232 Ky. 702, 23 S.W.2d 564, where there was a separation of damages for conscious suffering and death by reason of being scalded by steam, a verdict awardi......
  • Arkell v. Baltimore & O. R. Co., No. 35748.
    • United States
    • United States State Supreme Court of Missouri
    • July 7, 1939
    ...Ann.Cas.1914C, 176; Norfolk & W. R. Co. v. Holbrook, 235 U.S. 625, 35 S.Ct. 143, 59 L.Ed. 392; Louisville & N. R. Co. v. Jolly's Adm'x, 232 Ky. 702, 23 S.W.2d 564, loc. cit. 572], and the conscious pain and suffering endured by the deceased from the time of injury until his death, two days ......
  • Request a trial to view additional results

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