Long v. Southern Ry. Co. in Kentucky

• Citation: 155 Ky. 286,159 S.W. 779
• Parties: LONG v. SOUTHERN RY. CO. IN KENTUCKY.
• Decision Date: 15 October 1913
• Court: Court of Appeals of Kentucky

159 S.W. 779

155 Ky. 286

LONG v. SOUTHERN RY. CO. IN KENTUCKY.

Court of Appeals of Kentucky.

October 15, 1913

Appeal from Circuit Court, Mercer County.

Action by James Long against the Southern Railway Company in Kentucky. Judgment for defendant, and plaintiff appeals. Affirmed.

C. E Rankin, of Harrodsburg, for appellant.

Edward P. Humphrey, of Louisville, and E. H. Gaither, of Harrodsburg, for appellee.

CLAY C.

Plaintiff James Long, brought this action against defendant, Southern Railway Company in Kentucky, to recover damages for personal injuries. At the conclusion of plaintiff's evidence the trial court directed a verdict in favor of the defendant. Plaintiff appeals.

It is admitted that defendant is a common carrier engaged in interstate commerce. At the time of his injury plaintiff was a section hand and engaged in doing such manual labor as his foreman might direct. Defendant had on hand a large number of ties which had been carried to and stacked in its yards at Lawrenceburg. At the time of the accident, plaintiff and two others were loading some of these ties on a flat car. The ties were to be carried and distributed at certain points along its line of railway. From these points they were to be loaded on a push car and distributed along the side of the track at various points, where they were to be used in replacing the ties that were found defective. There were three employés engaged in loading the ties, and their manner of doing the work was as follows: Two of them caught hold of the front end of the tie, while the third caught hold of the rear end. Then in concert the three gave a swing and let the tie go at the same time. By this swing the tie was carried far enough upon the deck of the car for other men on the car to seize it and place it in proper position. The ties that were being handled had been out in the rain for some time and were wet and slick. When plaintiff was injured, he and a negro by the name of Donehi had hold of the front end of the tie. Dick League had hold of the rear end.

In giving an account of his injury, plaintiff took a stick and explained how he was injured in the following language "Ans. Well, like this was the end of the tie, and this table like the flat car; League had hold of this end out here, and me and Donehi was hold of this end out here, at this end at the car. I was on the same side of the tie as I am of this stick, and Donehi was opposite me, just this way (indicating). Donehi was over here facing me. We raised up the tie and walked to the car with it, and, as we went to raise it up and pitch it on the car, it slipped just as we was in the swing. League kinder twisted it and it turned right over on my side, and of course I couldn't get out of the way, and it caught my finger and cut the end of it off on the edge of the flat car. Q. Just show how it was done. Ans. It just caught my finger just that way (indicating). Q. On what part of the car? Ans. On the edge of the car and let it lying there. Q. Just show the jury how you lifted that tie. Did you swing it? Ans. We was just in the swing when it turned, and it throwed all the weight over on me." Further along plaintiff was interrogated by the court and testified as follows: "Q. You say there were three of you lifting this tie? Ans. Yes, sir. Q. Was it in the swing that caused it to turn? Ans. Yes, sir. Q. What caused it to turn? Ans. On account of it being slick. It had a round corner, and Mr. League had hold of the back end of the tie and Donehi and me was at this end, and they let it turn and caught me." On cross-examination witness stated that he had been in the service of the company about eight months. He understood the loading of ties and knew of the dangers incident thereto.

Richard League, another witness for the plaintiff, describes the incident as follows: "Ans. There were three of us loading them; Jim Long and Frank Donehi was at one end and I was at the other; I was carrying the back end of it; when we got to the flat car, we aimed to make a swing, and easy up swing; the tie was slick, had a round corner, and it slipped and turned on Jim's side and cut his finger. Q. It slipped in your hand and turned onto him? Ans. Yes, sir. Q. Was that when his fingers was hurt? Ans. Yes, sir." Cross-examination: "Q. How long have you been working on the railroad? Ans. The 16th of August it will be three years. Q. You have handled ties a good deal? Ans. Yes, sir. Q. And...