Louisville & N.R. Co. v. Mullins' Adm'x

• Decision Date: 14 June 1918
• Citation: 181 Ky. 148,203 S.W. 1058
• Parties: LOUISVILLE & N. R. CO. v. MULLINS' ADM'X. [a1]
• Court: Kentucky Court of Appeals

203 S.W. 1058

181 Ky. 148

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

Court of Appeals of Kentucky.

June 14, 1918

Appeal from Circuit Court, Rockcastle County.

Action by Frank Mullins' administratrix against the Louisville &amp Nashville Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Ashby Warren, of Louisville, John W. Brown and C. C. Williams, both of Mt. Vernon, and Benjamin D. Warfield, of Louisville, for appellant.

L. L Walker, of Lancaster, and Bethurum & Lewis, of Mt. Vernon for appellee.

CLAY C.

Frank Mullins, an employé of the Louisville & Nashville Railroad Company, was struck by one of its trains and killed. He was survived by his widow and three infant children. His widow qualified as his administratrix, and brought this suit under the federal Employers' Liability Act to recover damages for his death. The jury returned a verdict in favor of plaintiff for $5,000, and apportioned $2,000 to the widow and $1,000 to each of the infant children. Judgment was entered accordingly, and the railroad company appeals.

On the division where the accident occurred the railroad company's line is double tracked and the block signal system is maintained. Deceased, who was 39 years of age, had been in the company's employ for 13 months, was a signal maintainer, and it was his duty to look after, repair, and maintain the electric signals on that portion of the company's road extending from Berea in Madison county to Sinks in Rockcastle county, a distance of 20 miles. From Berea to Snider, where deceased lived, is about 5 miles, and from Snider to Sinks about 15 miles. Mullins tunnel, where the deceased was killed, is about 1 mile north of Sinks and 14 miles from Snider. On the morning of the day of the accident, deceased left his home at Snider about 9 o'clock to attend to his duties. For this purpose he was furnished a tricycle. The last signal on the southern end of his section was about 100 yards below Mullins station. A few minutes before he was killed, he was seen in a telephone booth immediately south of the tunnel. When he reached the mouth of the tunnel on his tricycle, he was struck by the company's fast passenger train from the south, and his body was found in the tunnel about 60 feet from the mouth. His tools and portions of his tricycle were scattered about the tunnel. The accident occurred at 4:28 p. m. December 17 1915, and it was then dark and rainy. The train was on time. Though the train operatives testified to the contrary, there was evidence to the effect that the headlight on the engine was not burning at the time of the accident.

Besides other instructions on the measure of damages, contributory negligence, assumed risk, etc., the trial court instructed the jury, in substance, that it was the duty of the railroad company to keep and maintain a headlight, properly lighted, upon the front of its engine when running in the dark, and if they believed from the evidence that the deceased, Frank Mullins, at the time he was struck and killed by defendant's train, was upon defendant's track, in the usual course of his employment, and that it was dark and the defendant's agents and employés in charge of the engine negligently failed to have the headlight on the front of the engine burning in its usual and customary manner, and that by reason thereof plaintiff was struck and killed by said train, then they should find for plaintiff.

The point is made that the case is not governed by the federal Employers' Liability Act, because the petition alleges that the decedent was en route to his home at the time of the accident, and there was no evidence tending to show that he was authorized to use the tricycle for that purpose. We are not, however, disposed to take such a narrow view of the question. The tricycle was furnished decedent for the purpose of performing his duties. To this end it was necessary for the tricycle to be conveniently near so that it could be used. It is not, therefore, to be presumed that his right to use it ended when he had inspected the signals. If this were the case, then the decedent, though several miles from home, would have had to remove the tricycle from the track, leave it unprotected, and either walk to his home or take the chance of catching a train. Not only so, but the next morning it would have been necessary for him to consume the time which he should have devoted to the performance of his duties in returning to the place where the tricycle was left. Hence we conclude that deceased's right to use the tricycle in returning to his home was fairly inferable from the fact that it was furnished him for the purpose of facilitating the performance of his work. We further conclude that his homeward journey was a necessary incident of his day's work, and that at the time of his death he was discharging a duty of his employment. And since the defendant was an interstate carrier, and deceased was engaged in work necessary to facilitate the movement of interstate trains, there can be no doubt...