Louisville & N.R. Co. v. Veach

• Decision Date: 10 June 1898
• Parties: LOUISVILLE & N. R. CO. v. VEACH. [1]
• Court: Kentucky Court of Appeals

46 S.W. 493

LOUISVILLE & N. R. CO. v. VEACH. ^[1]

Court of Appeals of Kentucky.

June 10, 1898

Appeal from circuit court, Christian county.

"Not to be officially reported."

Action by Charles S. Veach against the Louisville & Nashville Railroad Company to recover damages for a personal injury. Verdict and judgment for plaintiff, and defendant appeals. Affirmed.

Joe McCarroll, H. W. Bruce, and B. D. Warfield, for appellant.

W. S Pryor, John Feland, W. R. Howell, and C. H. Bush, for appellee.

BURNAM J.

Appellee in attempting to couple two cars belonging to the Union Tank Line Company, which were being transported by appellant, had three fingers and the end of the thumb on his right hand mashed off between the iron bumpers thereof. He alleges, in substance, that he was an inexperienced brakeman, having been employed in that capacity on a local freight train of appellant for only about six weeks; that he was taken off of this local train but four days before the accident; that he was awakened at 3:45 a. m. on the morning of the accident by appellant's watchman, to go out on train No. 65, which was to leave at 5:15 a. m.; that he had never been employed on this train before; that, when he got to the yard, it was necessary that the train should be made up at once, in order that it might get out on time; that it was his duty as brakeman to couple the cars; that he examined the caboose to procure a coupling stick, but could find none where they were usually kept, and that, to avoid delay, it was necessary that he should make the coupling with his hands, and that, in so doing, they were caught between the iron bumpers; that the drawheads and coupling apparatus on the cars he was required to couple were unusual and unfamiliar to him, and exceedingly dangerous; that the cars had double iron bumpers, or "dead irons," about 10 inches square on each side of the coupling apparatus, and that these bumpers extended further out than the drawheads, and came into contact with each other before the drawheads of the respective cars; that the train started before daylight; and that he had received no notice or instruction from any of his superiors of the peculiar character of these couplings, and had had no opportunity of becoming acquainted with them. He also charges that the engineer backed the portion of the train next to the engine so rapidly as not to afford him reasonable time to make the coupling with safety. Defendant, by way of defense alleges--First, that plaintiff was guilty of contributory negligence in attempting to make the coupling without the use of a coupling stick which had been furnished to him, and which the rules of the company imperatively required that he should use; second, it alleges that the cars which the plaintiff undertook to couple were owned by the Union Tank-Line Company for shipment of oil in large quantities that appellant is a common carrier of freight, and that, when these cars were delivered to it by a connecting line, it was bound by law to receive and transport them on its railroad if they were without material defects of construction which might be ascertained by ordinary inspection, regardless of the kind of coupling apparatus which might be attached thereto; that the cars were without defects known or discoverable to it; and that it was not responsible for extra hazard in coupling growing out of difference of construction between them and cars used on its own line; and that plaintiff knew the peril, and, in attempting to couple them, assumed the risk incident thereto, especially as he was acting in violation of the rules of the company in attempting to do so without the use of a coupling stick. The issues being made up, plaintiff recovered verdict and judgment for $3,000, from which this appeal is prosecuted. Appellant relies for reversal on the following grounds: First, because the verdict and judgment were flagrantly against the law and evidence; and, second, that the court erred in instruction No. 1 given to the jury, and that the court especially erred in overruling defendant's motion for a peremptory instruction.

There seems to be very little dispute as to how this accident occurred, appellee being the only witness. He says that he signaled the engineer to back up; that he noticed the stationary car which he was to couple had large double iron bumpers, 10 inches square, on each side of the drawheads and coupling apparatus, but that it was so dark that he did not discover that the car in front of it had similar appliances that, when he went to make the coupling and drop in the link, he saw his arm was about to be caught between the iron bumpers, which extended further out than the drawheads; that he jerked back, but not in time to prevent his hand from being caught between the bumpers. He testifies that coupling cars with these "dead irons" on both sides of the drawbars is very dangerous; that he had never had any experience in coupling cars constructed with the double bumpers; that the cars of the defendant company which he had coupled previously to that time had only single bumpers; that no one gave him any warning of this, to him, unusual apparatus; that, if he had been familiar...