Louisville & N. R. Co. v. Mattingly

• Decision Date: 12 December 1958
• Citation: 318 S.W.2d 844
• Court: United States State Supreme Court — District of Kentucky
• Parties: LOUISVILLE & NASHVILLE RAILROAD COMPANY, Appellant, v. Spencer MATTINGLY, Appellee.

Page 844

318 S.W.2d 844

LOUISVILLE & NASHVILLE RAILROAD COMPANY, Appellant, v. Spencer MATTINGLY, Appellee.

Court of Appeals of Kentucky.

Dec. 12, 1958.

Woodward, Hobson & Fulton, John A. Fulton, John P. Sandidge, Louisville, for appellant.

Vincent J. Hargadon, Harry L. Hargadon, Arnold J. Lemaire, J. L. Bennett, Jr., Louisville, for appellee.

STEWART, Judge.

In this action plaintiff, Spencer Mattingly, sued defendant, Louisville & Nashville Railroad Company (herein referred to as 'L. & N.'), to recover damages growing out of an injury received by him because of the alleged negligence of L. & N.'s employees in conducting a switching movement. The case was tried before a jury and a verdict of $20,000 was returned in favor of Mattingly.

L. & N. has appealed from the judgment entered, advancing eight grounds for reversal. We have determined that one of the contentions urged for setting aside the judgment must be sustained, namely, that the damages awarded are excessive. Practically all of the other questions raised on this appeal need not be considered because when this case is remanded for a new trial they will not reappear. A preliminary proposition that must be disposed of concerns an instruction which L. & N. claims was erroneously given and two instructions which it claims were wrongfully refused when offered by it. Thereafter we shall discuss the ground we have concluded merits a reversal of the judgment.

These are the facts out of which this litigation arose. On September 14, 1953, Mattingly, then 41 years of age, was engaged in unloading coal on the north end of L. & N.'s switch track at Loretto from a 'hopper' type of car with drop-bottom doors. The coal was unloaded by opening the doors and releasing it into a pit from which it was extracted by means of a gasoline-operated conveyor. It was dumped into a truck and then hauled away. In addition to the coal car Mattingly was unloading, a car filled with sand, a gondola loaded with ties, and a boxcar were located on the switch track to the south in the order mentioned.

The switch track is laid out in a general north-south direction, and the grade of the northern portion is lower than that of the southern. Prior to Mattingly's accident, the sand car had been moved with a pinchbar to place it beyond certain cattle pens so it could be gotten to more conveniently with trucks. There is a conflict in the evidence as to whether or not the brakes on it were subsequently reset. Also the position of the coal car was later changed. When this car was spotted only one-half of it could be discharged into the pit because only the north part of it was over the pit. After the coal car was re-spotted its brakes were not reset, but wood chocks consisting of 2"' X 4"' or 2"' X 6"' timbers were placed under some of the wheels. It was admitted this was sufficient to keep the car from rolling so far as the grade was concerned. The distance these two cars were from each other after the movements mentioned was variously estimated at five and one-half to 20 feet.

Sometime during the morning, the owner of the sand informed the local L. & N. agent he desired the car located at another spot on the switch track in order to facilitate its unloading. This message was relayed to the crew of a freight train which was at the time on its way to Loretto. Around noon this train stopped to carry out this order and entered the switch track from the south end after approaching from that direction. Two brakemen went along with the uncoupled engine and walked up to the boxcar and the gondola loaded with ties. These two cars were approximately 200 to 300 feet from the cars loaded with sand and coal.

It was intended a coupling would be made by the engine with the boxcar and the gondola without any difficulty. When this was attempted the coupling missed and the engine's impact was sufficient to start the boxcar and the gondola, which had joined together in the meantime, in motion toward the north for the reason, it will be recalled, the grade was lower in that direction. One of the brakemen soon overtook and climbed the rolling boxcar and started applying its brakes. He was not able to halt the progress of the two cars with the result that they bumped into the sand car and these three continued on and in turn struck the coal car. The latter rolled farther on about three car lenghts before stopping.

Mattingly testified that at the time the moving cars struck the coal car he was under it working with an iron bar to dislodge some large lumps which had jammed the passage of coal from the car into the pit. According to his testimony, one of the drop-doors hit him on the head and caused him to double back, and that after a lapse of ten or fifteen minutes from the time of the accident he experienced a sharp pain in his back. It is undisputed in the evidence that shortly after the occurrence of the mishap the conductor and a brakeman of the train contacted Mattingly and the latter refused to give them his name and remarked that he was not hurt.

Mattingly stated that he was under the coal car for approximately eight minutes immediately before he was allegedly injured. On the other hand, one of the brakemen on the train testified that at the beginning of the switching movement there was no one around the coal car but that, after the engine later endeavored to couple the boxcar and the gondola at the south end of the switch track and these cars began to roll, he saw Mattingly walk toward the coal car and bend under it. When the cars hit the coal car, according to him, Mattingly jumped back. This witness emphasized that Mattingly did not at any time crawl under the car but was crouched beside it when it was struck. The engine involved was a steam engine, and the evidence shows that during the entire switching period its bell was ringing. In addition the conveyor was running when the accident happened.

We shall now pass on the instruction that is claimed to have been erroneous, which was among those given at the conclusion of the evidence after L. & N.'s motion for a directed verdict had been overruled. It is insisted the trial judge wrongfully told the jury to find for Mattingly unless they believed he failed to exercise ordinary care for his own safety. L. & N.'s argument on this point is that Mattingly was contributorily negligent as a matter of law in releasing the brakes on the coal car, moving it to a new position and then not resetting the brakes, and afterwards getting under it with the knowledge that it was downgrade from the nearby sand car which was liable to roll against it...