Louisville & N.R. Co. v. Jolly's Adm'x

• Decision Date: 14 January 1930
• Citation: 232 Ky. 702,23 S.W.2d 564
• Parties: LOUISVILLE & N. R. CO. v. JOLLY'S ADM'X. [a1]
• Court: Kentucky Court of Appeals

23 S.W.2d 564

232 Ky. 702

LOUISVILLE & N. R. CO. v. JOLLY'S ADM'X. ^[a1]

Court of Appeals of Kentucky

January 14, 1930

Appeal from Circuit Court, Kenton County, Common Law and Equity Division.

Action by the administratrix of Henry C. Jolly, deceased, against the Louisville & Nashville Railroad Company. Judgment adverse to defendant, and it appeals. Affirmed.

Ashby M. Warren and J. P. Hamilton, both of Louisville, and Rouse &amp Price, of Covington, for appellant.

Northcutt & Northcutt and Lula A. Northcutt, all of Covington, for appellee.

WILLIS J.

This is an action to recover damages for personal injuries resulting ultimately in the death of plaintiff's intestate, Henry C. Jolly, an engine hostler, who was scalded by escaping steam released as the result of a collision between two locomotives. Two grounds of action were asserted, one for the death and the other for the conscious suffering of the injured man. The action was predicated upon the Employers' Liability Act of Congress of April 22, 1908 (45 USCA §§ 51-58), as amended April 5, 1910 (45 USCA § 59). The amendment provided for the survival of the cause of action of the injured employee, when death from the injury was not instantaneous. The plaintiff recovered a verdict upon each cause of action, and the trial court refused a request of the railroad company for a new trial. It appeals insisting (1) that the case did not come within the purview of the Federal Employers' Liability Act because the intestate was not engaged in interstate commerce at the time of his injury; (2) that the decedent was guilty of contributory negligence as a matter of law, and that the trial court should have so advised the jury; (3) that the damages allowed are palpably excessive; (4) that the court abused its discretion in permitting the case to be reopened for the introduction of further evidence after an argument had been addressed to the jury; and (5) that the instructions given the jury were erroneous in directing the jury to apportion its verdict among the several dependents according to their respective pecuniary losses and in defining contributory negligence under the federal act. These contentions will be considered and determined in the order stated.

1. There was evidence tending to show that Jolly and his helper had taken a passenger train to Cincinnati, Ohio, and had returned to the roundhouse in Covington, Ky. for further orders; that the assistant foreman at the roundhouse had received an order to provide an engine for a 1:45 a. m. extra job; that the assistant foreman had been told by the foreman to use engine No. 923 then at the water tank for that purpose; that the assistant foreman had ordered Jolly to prepare engine No. 923 for that service; that Jolly proceeded without his helper to move the engine from the water tank to the coal bins for the purpose of coaling it, after which it was to be placed by him on the ready track for the train crew to take charge of for pulling the extra cut of cars; that before reaching the coal bin the accident occurred in which the engine was disabled, and Jolly injured. The locomotive was under a full head of steam when taken by Jolly, and a single coaling would have served for several hours. There was evidence also tending to show that only interstate transfer cars were handled in this yard between the hours of 12:00 a m. and 6:00 a. m. and that train crews were not called during that period for local work, but only for interstate work that the "1:45 extra job" to which engine No. 923 had been assigned was a string of cars to be delivered in Cincinnati, Ohio, to connecting carriers and was so delivered shortly after the accident. The question is whether Jolly's work in moving and preparing the engine as ordered was employment in interstate commerce, even though the interstate cars had not yet been connected to the engine. The test of employment in interstate commerce is whether the employee at the time of the injury is engaged in interstate transportation, or in work so closely related to it as to be practically a part of it. Each case must be determined on its own peculiar facts, and no formula can be found "invariable by circumstances or free from confusion by them in application." Industrial Accident Com. v. Davis, Agent, 259 U.S. 182, 42 S.Ct. 489, 491, 66 L.Ed. 888; cf. Hench v. Penn. R. Co., 246 Pa. 1, 91 A. 1056, L.R.A. 1915D, 557, Ann.Cas. 1916D, 230; New York C. & H. R. Co. v. Carr, 238 U.S. 260, 35 S.Ct. 780, 59 L.Ed. 1298. The problem is not to be solved by considering the mere physical position of the employee at the moment of the injury, but by the character of the work he was doing and its immediate purpose and effect. If the tendency of the particular act is to expedite, further, or facilitate a movement in interstate commerce, or to secure its safety, its performance can not be a matter of indifference to that traffic. Kinzell v. Chicago, M. & St. P. R. Co., 250 U.S. 130, 39 S.Ct. 412, 63 L.Ed. 893; Morrison v. Chicago, M. & St. P. R. Co., 103 Wash. 650, 175 P. 325, certiorari denied 249 U.S. 611, 39 S.Ct. 386, 63 L.Ed. 801. Or, to put the proposition in another form, if the injury to the workman operates to delay, hinder, or interfere with the free movement of interstate trains or traffic, it is essentially immediate thereto and comprehended within the prescribed test. Baltimore & O. R. Co. v. Darr (C.C.A.) 204 F. 751, 47 L.R.A. (N. S.) 4; Southern R. Co. v. Puckett, 244 U.S. 571, 37 S.Ct. 703, 61 L.Ed. 1321, Ann.Cas. 1918B, 69; Pedersen v. Delaware, L. & W. R. Co., 229 U.S. 146, 33 S.Ct. 648, 57 L.Ed. 1125, Ann.Cas. 1914C, 153; Lamphere v. Oregon R. & Nav. Co. (C.C.A.) 196 F. 336, 47 L.R.A. (N. S.) 1. If an employee is hurt in the course of his employment while going to a car to perform an interstate duty, or if he is injured while preparing an engine for an interstate trip, he is entitled to the benefits of the federal act, although the accident occured prior to the actual coupling of the engine to the interstate cars. St. Louis, S. F. & T. R. Co. v. Seale, 229 U.S. 156, 33 S.Ct. 651, 57 L.Ed. 1129; Southern Ry. Co. v. Lloyd, 239 U.S. 496, 36 S.Ct. 210, 60 L.Ed. 402; North Carolina R. Co. v. Zachary, 232 U.S. 248, 34 S.Ct. 305, 58 L.Ed. 591, Ann.Cas. 1914C, 159; Van Buskirk v. Erie R. Co. (C.C.A.) 279 F. 622; New York C. & H. R. R. Co. v. Carr, 238 U.S. 260, 35 S.Ct. 780, 59 L.Ed. 1298; Moore v. Grand Trunk R. Co., 93 Vt. 383, 108 A. 334.

Illuminating instances found in the reported cases illustrate the application of the principle. In Pedersen v. Delaware, L. & W. R. Co., 229 U.S. 146, 33 S.Ct. 648, 649, 57 L.Ed. 1125, Ann.Cas. 1914C, 153, the plaintiff was injured while carrying a sack of bolts to a bridge to be used in repairing it. The bridge was used by trains carrying both kinds of commerce. The court said: "We are of opinion that the work of keeping such instrumentalities in a proper state of repair while thus used is so closely related to such commerce as to be in practice and in legal contemplation a part of it."

In Walsh v. New York, N.H. & H. R. Co., 223 U.S. 1, 32 S.Ct. 169, 56 L.Ed. 327, 38 L.R.A. (N. S.) 44, it was held that a car repairer, replacing a drawbar in a car then in use in interstate commerce, was within the protection of the federal act. In Norfolk & W. R. Co. v. Earnest, 229 U.S. 114, 33 S.Ct. 654, 57 L.Ed. 1096, a fireman engaged in piloting a locomotive through several switches to a main track, where it was to be attached to an interstate train to assist it up a grade, was held to be employed in interstate commerce. In St. Louis, S. F. & T. R. Co. v. Seale, 229 U.S. 156, 33 S.Ct. 651, 57 L.Ed. 1129, a clerk in a railroad yard, injured while on his way to meet an incoming train to mark the cars so that the switching crew, in breaking up the train, would know what disposition to make of them, was found to be engaged in interstate commerce. In North Carolina R. Co. v. Zachary, 232 U.S. 248, 34 S.Ct. 305, 58 L.Ed. 591, Ann.Cas. 1914C, 159, it was held that a fireman, having inspected, oiled, fired, and prepared an engine for an interstate trip, was performing acts as a part of interstate commerce, although the locomotive was not coupled to the train and the fireman was injured on the ground while making a casual trip to his boarding house. In Erie R. Co. v. Collins, 253 U.S. 77, 40 S.Ct. 450, 452, 64 L.Ed. 790, the plaintiff operated a signal tower and water tank, the tower being used for the operation of trains in both commerces. The tanks were used for supplying locomotives with water which was pumped from the wells into the tank by a gasoline engine operated by plaintiff. He was injured by an explosion of the gasoline engine. The court said: "Plaintiff was assigned to duty in the signal tower and in the pump house and it was discharged in both on interstate commerce as well as on intrastate commerce, and there was no interval between the commerces that separated the duty, and it comes therefore within the indicated test. It may be said however, that this case is concerned exclusively with what was to be done, and was done, at the pump house. This may be true but his duty there was performed and the instruments and facilities of it were kept in readiness for use and were used on both commerces as were demanded, and the test of the cases satisfied."

In Philadelphia, B. & W. R. Co. v. Smith, 250 U.S. 101, 39 S.Ct. 396, 63 L.Ed. 869, an employee of an interstate railroad who was serving as cook in a camp car for a gang of bridge carpenters, injured on a side track while in performance of his duties, was held to be embraced by the provisions of the act. In Erie Railroad Co. v Szary, 253 U.S. 86, 40 S.Ct. 454, 455, 64 L.Ed. 794, the plaintiff was employed in the railroad yards at a small...