Louisville & N.R. Co. v. Payne's Adm'r

• Decision Date: 30 October 1917
• Citation: 177 Ky. 462,197 S.W. 928
• Parties: LOUISVILLE & N. R. CO. v. PAYNE'S ADM'R. [a1]
• Court: Kentucky Court of Appeals

197 S.W. 928

177 Ky. 462

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

Court of Appeals of Kentucky.

October 30, 1917

Appeal from Circuit Court, Bullitt County.

Suit by N. B. Bowling, as administrator of the estate of J. T. Payne against the Louisville & Nashville Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Benjamin D. Warfield, of Louisville, for appellant.

Daugherty & Fulton and Frank E. Daugherty, all of Bardstown, C. P Bradbury, of Shepherdsville, and Ernest N. Fulton, of Bardstown, for appellee.

CLAY C.

N. B Bowling, as administrator of J. T. Payne, deceased, brought this suit under the Federal Employers' Liability Act (Act April 22, 1908, c. 149, 35 Stat. 65 [U. S. Comp. St. 1916, §§ 8657-8665]) against the Louisville & Nashville Railroad Company, to recover damages for his death. The jury returned a verdict in his favor for $5,050, of which sum they apportioned $5,000 to the decedent's widow, and $50 to his daughter. Judgment was entered accordingly, and the railroad company appeals.

According to appellee's evidence, appellant is an interstate carrier, and at the time of his death decedent was in its employ as car inspector and repairer. At about 6 o'clock on the morning of the accident, which occurred on October 25 1915, J. R. Carpenter, the company's chief car inspector, met decedent and said, "53 is called." This was an order to the decedent to inspect the cars and see that they were ready to go out. These cars were assembled on track No. 1, in the Lebanon Junction yards, and 53 was an interstate train. About 8 o'clock that morning train No. 18 arrived at Lebanon Junction from Bowling Green. At that time there were eight empty cars on track No. 1. After doing some other switching, the engine on train No. 18 pushed a cut of four cars onto the north end of track No. 1. Two attempts were made to couple this cut of cars to the eight cars already on that track, but because of some defect in the apparatus the coupling was not made. During this movement the eight cars were shoved for a distance of about three or four car lengths. After this movement, decedent was found dead under the south trucks of the sixth car from the north end and the third car from the south end, with one of his legs wedged between the arch bars and the wheel. While the cut of four cars was being shoved on track No. 1, no employé was on the front car. There was also evidence to the effect that no signal of the approach of the four cars was given. It was further shown that the tracks in the yards of the company at Lebanon Junction were used by a large number of employés. Though the rules of the company require that a workman going under or between cars should protect himself with a blue flag, Bates, the yardmaster, testified that the inspectors were not in the habit of placing blue flags when inspecting trains, and that this custom had prevailed for a number of years. It was also shown that it was the custom in the yards, when coupling an engine and cars to a cut of dead cars, to send a brakeman ahead to inspect the cut of cars.

According to the evidence for the company, the chief car inspector gave the decedent no order with reference to train 53, and decedent had no duties to perform in connection with the cut of cars on track No. 1. As a matter of fact, they had been inspected the night before by an employé charged with that duty. It was further shown that the eight cars in question did not go out on train 53 that day, but constituted a part of another train. It was not customary for the whistle to be blown under such circumstances, but the bell on the engine was ringing as the engine backed into the cars. If decedent was under or between the cars, he could not have been seen; otherwise, he could have been seen. The head brakeman looked down both sides of the eight cars, but did not see anybody. If the decedent was under or between the cars, it was his duty to protect himself with a blue flag. The company had no rule requiring trainmen or switchmen to look out for car repairers who did not protect themselves in this manner.

1. The first ground urged for a reversal is that the case should not have gone to the jury, because appellee failed to prove that the decedent's death was due to any negligence on the part of the company. In this connection it is argued that the evidence utterly fails to show for what purpose, or under what circumstances, or at what time, the decedent went under or between the cars, and that the case therefore falls within the well-recognized rule that, where the decedent's death may as well be attributed to a cause for which the company was not responsible as to a cause for which it was responsible, the company's liability should not be made a matter of mere conjecture on the part of the jury. L. &amp N. R. R. Co. v. Long's Adm'r, 139 Ky. 304, 117 S.W. 359; Louisville Gas Co. v. Kaufman & Straus Co., 105 Ky. 131, 48 S.W. 434, 20 Ky. Law Rep. 1069. With this contention we cannot agree. There was positive evidence that the decedent was notified that No. 53 had been called, and that this notice was equivalent to an order to inspect the cars which were to compose that train and see that they were in condition to go out. The cars which went out on that train were usually assembled on track No. 1. Decedent's body was found wedged between the arch bars and the wheels of one of the cars assembled on that track. Having been directed to work there, it is a fair and reasonable inference that at the time of the accident he was engaged in the performance of his duties. The theory of suicide is not to be entertained. The peculiar position of decedent's body is sufficient to justify the conclusion that his injuries did not take place while the cars were standing still, but...