Louisville & N.R. Co. v. Wilson

• Decision Date: 14 November 1924
• Citation: 266 S.W. 13,205 Ky. 533
• Parties: LOUISVILLE & N. R. CO. v. WILSON.
• Court: Kentucky Court of Appeals

266 S.W. 13

205 Ky. 533

LOUISVILLE & N. R. CO. v. WILSON.

Court of Appeals of Kentucky.

November 14, 1924

Appeal from Circuit Court, Harrison County.

Action by Charles Wilson against the Louisville & Nashville Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Woodward & Warfield, John Marshall, Jr., and Ashby M. Warren, all of Louisville, Emmett M. Dickson, of Paris, and Hanson Peterson of Cynthiana, for appellant.

M. C Swinford and Swinford & Swinford, all of Cynthiana, for appellee.

TURNER C.

Appellee brought his action for damages against appellant, alleging that while acting as water carrier to a crew on a work train he was injured by reason of the negligence of the defendant and its officers and agents. The answer denied the negligence, and relied upon contributory negligence and assumption of risk. On the trial, a verdict in favor of the plaintiff was returned for $1,500, upon which judgment was entered, and from which this appeal is prosecuted.

Appellee had been engaged by appellant for a number of years, but had most of the time been a member of a section crew, and his duties were that of a general laborer, and sometimes included that of water boy or water carrier. On the occasion in question he was sent out with the work train crew, and was acting chiefly as water boy. The work train was engaged in taking up along the right of way piles of rock that had been piled near thereto, and in doing so went up and down the track, stopping at such piles of rock. The train consisted of an engine, a tender, and about 13 or 14 flat cars, upon which the rocks were loaded. When the train stopped at a place where the rocks were piled, part of the crew got out on the ground and lifted or placed the rock on the flat cars, while a part of the crew remained on the cars and arranged or placed the rocks after they were placed thereon.

Appellee's duties were to take his water bucket and go to a nearby spring and bring water for the workmen, and when that part of the crew working on the flat cars called for water, it was his duty, as shown by the evidence, to take his bucket onto the flat car and pass it around to the workmen who wanted it. On the occasion of the injury the train had backed up to or near a pile of rock and stopped, but had not, when it first stopped, placed the cars in exactly the right position for the loading of the rocks, and this necessitated another short movement of the train to properly place the cars. Just before this second movement of the train some workmen on one of the cars called for water, when appellee, then on the ground lifted his water bucket and set it on the corner of the flat car next to the tender, and climbed up by means of a stirrup and handhold on the tender next to the flat car, intending to step across the narrow space between the tender and the flat car, get his bucket, and pass around the water. Just as he reached a little platform or space on the tender, the train moved the second time, as the evidence shows without signal or warning, and the jar caused part of his body to fall between the cars and his foot caught in the coupling and was injured.

There is no complaint of the amount of the verdict, and could not well be; but appellant insists it was entitled to a directed verdict: (a) Because plaintiff was not, at the time of his injury, acting within the scope of his employment, and consequently defendant owed him no duty; and (b) because it was such a risk as he assumed as incident to the employment.

The first contention for appellant is that there was no evidence to show appellee's duties required him to get on the car to...