Louisville & N.R. Co. v. Alexander
| Decision Date | 25 April 1939 |
| Citation | 277 Ky. 719 |
| Court | United States State Supreme Court — District of Kentucky |
| Parties | Louisville & N.R. Co. v. Alexander. |
1. Limitation of Actions. — Where employee sustained injury in February, 1934, and filed petition in action for injuries against railroad in August, 1934, and caused summons to be issued against defendant to a county where it did not reside but did have an agent, and service of summons was not completed until March, 1935, action was commenced by the filing of the petition and causing summons to issue in August, 1934, and hence action was not barred by the one-year statute of limitations (Civil Code of Practice, sec. 39; Ky. Stats., sec. 2524).
2. Master and Servant. — Where master fails to furnish sufficient number of men with which to do work, servant injured in doing such work does not assume the risk of injury.
3. Master and Servant. — If an employee undertakes to lift a load heavier than he is able to bear and is thereby injured, he assumes the risk and cannot shift responsibility for his mistaken judgment onto the master, since employee is the best judge of his own physical strength.
4. Master and Servant. — Where railroad section hand undertook to handle a heavy switch tie without asking for assistance and while engaged in handling the tie was badly ruptured, section hand assumed the risk of injury, and could not impose liability upon the railroad.
5. Master and Servant. — The statute withdrawing the defense of assumed risk in actions by employees of common carriers for injuries sustained while engaged in commerce where the violation of any federal or state statute enacted for the safety of the employees contributes to the injury, was not applicable to section hand's action for injuries sustained while lifting one end of a heavy switch tie, and court was bound by the common-law rule of assumption of risk (Ky. Stats., sec. 820b-3).
Appeal from Wolfe Circuit Court.
H.T. LIVELY, J. MILLER WHITE, A.F. BYRD and C.S. LANDRUM for appellant.
WILLIAMS & ALLEN, J. MOTT McDANIEL and S.S. WILLIS for appellee.
Before J.B. Howard, Judge.
Reversing.
There are two primary questions involved in this case. One is whether the action for damages for personal injuries was commenced within one year, the period of limitation, and the other whether an employee of the appellant Railroad Company assumed the risk which resulted in his being injured. Other questions are whether the instructions were erroneous and the verdict of $10,000 excessive, but it is not necessary to decide them.
The plaintiff, now appellee, Robert Alexander, was injured while employed as a section hand in Fayette County in February, 1934. The petition alleges that he was a resident of Wolfe County where the defendant has railway lines. The petition bears the endorsements: The record contains copies of two summonses, one issued March 11th (the figure "11" being written above the figure "9" which has a line through it) to Breathitt County and served on the defendant's agent in Jackson on March 14, 1935. The other was issued to Jefferson County on March 9, 1935, and executed on March 21, 1935, on John M. Scott, Secretary of the defendant, "he being the chief officer found in this county at this time."
A general demurrer was filed April 12, 1935. Asserting a non-waiver, answer was filed the same day. This consisted of a traverse and pleas of contributory negligence and assumed risk. It was not until September 9, 1935, that the defendant filed an amended answer setting up the plea of limitations upon the ground that if any summons was issued to Franklin county on August 27, 1934, it was never served upon the defendant and no return thereof was ever made by any officer; that the summons was served upon its agent in Breathitt County on March 14th, but at that time there was no endorsement on the petition of such summons having been issued; that on March 21st the sheriff of Jefferson County received a summons and copy purporting to have been issued March 9th, but no endorsement was made on the petition until after March 18th. Jefferson County is the location of the defendant's chief office, that is, where it resides. It is alleged that the action was not begun until March 9, 1935, which was more than one year after the accident occurred which gave rise to plaintiff's cause of action. A motion to strike and a demurrer to this amended answer were overruled and the plaintiff denied the action was not commenced until March 18, 1935, or not within one year, and averred that it was commenced August 27, 1934, by the filing of the petition and causing summons to be issued thereon in good faith on that date. It is to be observed no summons was ever issued to Wolfe County and no denial was made of the allegation that the defendant operated railroad lines in that county. It would appear that the issuance of the first summons to Franklin County was an error, but there is no evidence as to that or what became of such a summons. Nor is there any evidence tending to show it was not issued in good faith.
The company entered its appearance, so there is no question of jurisdiction. Section 73, Civil Code of Practice. The only question is whether the action is to be deemed as having been commenced within one year from the date of the injury. Section 39, Civil Code of Practice, defines the commencement of an action as the filing of the petition in the office of the clerk of the proper court and causing summons to be issued or warning order to be made thereon. Section 2524 of the Statutes, a part of the chapter dealing with limitations of actions, says:
"An action shall be deemed to have been commenced at the date of the first summons or process issued in good faith from the court or tribunal having jurisdiction of the cause of action."
The record shows a summons was issued. As the suit was brought in a proper court in time, merely because the summons was issued against the defendant to a county where it did not reside but where it did have an agent, it seems to us it would be unjust to hold that it was caused to be issued in bad faith. Appellant relies on Durrett v. Rider's Adm'x, 219 Ky. 695, 294 S.W. 156. It was therein held that the running of the statute was not stopped by the issuance of the summons and could have been stopped only by its service upon the defendant. The case is distinguishable in that the defendant there could not be sued properly out of his own county unless a...
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