Louisville & N.R. Co. v. Noble's Adm'X
| Decision Date | 22 November 1932 |
| Parties | Louisville & N.R. Co. v. Noble's Adm'x et al. |
| Court | United States State Supreme Court — District of Kentucky |
1. Courts; Master and Servant. — Law applicable to action for death of brakeman engaged in interstate commerce is federal statute and interpretations thereof made by United States Supreme Court (Federal Employers' Liability Act [45 USCA secs. 51-59]).
2. Master and Servant. — In action for death of brakeman riding end of backing train which collided with standing cars, when brakeman failed to open switch into proper track, railroad held entitled to directed verdict (Federal Employers' Liability Act [45 USCA secs. 51-59]).
3. Master and Servant. — Conductor's failure to personally supervise injured brakeman's actions or switching of cars held not to constitute negligence on railroad's part, where brakeman knew as much of the situation as conductor did (Federal Employers' Liability Act [45 USCA secs. 51-59]).
4. Master and Servant. — Risks to which brakeman was subjected in switching cars in manner, not violating federal statutes, agreed on by brakeman's associates and himself held "ordinary risks," which brakeman assumed (Federal Employers' Liability Act [45 USCA secs. 51-59]).
"Ordinary risks" are those dangers and risks that are normally or necessarily incident to one's occupation.
Appeal from Perry Circuit Court.
ASHBY M. WARREN, J.P. HAMILTON, and H.T. LIVELY, C.S. LANDRUM, and CRAFT & STANFILL for appellant.
C.A. NOBLE, J.T. BOWLING, ELBERT STRONG, and WOOTTON, HELM & WOOTON for appellees.
Reversing.
On November 17, 1927, Farish Noble, a young brakeman employed by the appellant, was killed in a collision. His administratrix recovered a judgment against the company for $10,000 which, on appeal, was reversed because the suit had been practiced under section 6 of the Kentucky Statutes instead of under the Federal Employers' Liability Act (45 USCA secs. 51-59), it appearing that the deceased was engaged in interstate commerce. Directions were given to permit a withdrawal by the plaintiff of an election to prosecute the case under the state statute and an amendment of the pleadings to conform to the federal act. All other questions were reserved. L. & N. v. Noble's Adm'x, 234 Ky. 504, 28 S.W. (2d) 733. Upon a retrial, judgment for $8,000 was rendered, from which this appeal is prosecuted.
It seems well to restate the facts in part for a better consideration of the particular point upon which this appeal must be decided, namely, that of a directed verdict.
The deceased was working on a train of forty-one loaded coal cars. When it reached the junction with the main line at Typo, in Perry county, instructions were given by the dispatcher that the train should proceed a few miles south to the Crawford yards and that the cars having steel under-frames should be placed on track No. 1, and those with wooden under-frames on track No. 3. These instructions were conveyed by Jennings, a brakeman, to the engineer, a fireman, and the deceased brakeman, Noble. Between the two main tracks in the yard are five storage tracks numbered 1 to 5, beginning with the one nearest the south-bound main track upon which this train ran. A cross-over or lead track diverges from it northwardly to the storage tracks, each in the order named.
When the train reached the yards near the office, as was the prevailing custom, the conductor or flagman cut loose the caboose while the train was in motion. The conductor remained in the caboose and the flagman went back to protect it. The engine and coal cars went on. There was an understanding by the engineer and the two brakemen that he should pull his train beyond the switch of the lead track and remain standing for a few minutes until the switches could be set and then back into the lead track and track No. 1. This was about 4:45 a.m., and the morning was dark, cold, and rainy. The fireman says that Noble got off the engine while it was in motion at a point about even with the switch from the lead track to siding No. 1, and that Jennings left the engine a moment later, about even with the switch from the main to the lead track. These switches are about 150 feet apart. Jennings testified that they got off about the same time, and, after getting on the ground, he told Noble to line the switches and he would go ahead and pick out the wooden under-frame cars. This was agreed to. There were only two cars of this type and they were the eleventh and twelfth from the engine. This left a string of twenty-eight cars on the rear end of the train to be placed on track No. 1. Jennings walked toward the engine and, it would seem, it began backing before he reached the coupling between the two classes of cars. At any rate, he boarded the train at that place and rode back on it in order to uncouple the cars at the proper place on track No. 1. It was understood then that the engine would go forward to permit the throwing of the switches and the placing of the two wooden cars on track No. 3, and then again pull out and back the rest of the string on No. 1 track. It was further understood that Jennings would ride the train and do the uncoupling while Noble tended the switches.
The switch to the lead track was opened by Noble, for there was no one else who could have opened it except Jennings, and he testified that he did not do so. After a few moments the engine sounded the whistle and backed at the rate of four or five miles an hour. The switch from the lead into track No. 1, had not been opened (which fact was unknown to the engine crew and Jennings), so that the cut of cars passed on and went into track No. 4. The engine men and Jennings thought it was going into track No. 1. There was a violent collision with some cars standing on track No. 4. Noble's body was found on the drawbar of the first of the cars which had been backed in. From his position it would seem that, when the cars collided, he was trying to get to the air cut-off valve which, if opened, would have stopped the train.
The law applicable to this case is the federal statute, and the interpretations thereof given by the Supreme Court of the United States, which are to be regarded as an integral part of it. L. & N. v. Jolly's Adm'r, 232 Ky. 702, 23 S.W. (2d) 564; C. & O. Railway v. Howard's Adm'x, 244 Ky. 838, 51 S.W. (2d) 461.
The uncontradicted, positive, and clear evidence of Jennings proves that the unfortunate man failed to perform the duty resting upon him to open the switch into track No. 1. It is also conclusively shown that he had no duty to perform on the moving cars and there was no reason for his being in that place of peril. His place was on the ground and not on the train. If the deductions of appellees' counsel be sound, that he was there to protect the train, he failed to do so, thereby becoming the author of his own tragic death. It is shown he could have stopped the moving cars by opening the air brake angle cock. The fireman did testify that the point where Jennings got off the engine was closer to the switch at track No. 1 than the point where Noble got off, and he expresses the opinion that it became the duty of Jennings to throw that switch while Noble should throw the lead track switch. Aside from the weak character of the evidence and its speculative nature, it was impossible for the witness to know of the definite arrangement made by the two brakemen as related by Jennings, who is not impeached. It would seem sufficient to quote these pertinent extracts from the recent case of Atchison, Topeka & Santa Fe Railway Company v. Saxon, 284 U.S. 458, 52 S. Ct. 229, 230, 76 L.Ed. 397:
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