Louisville & N.R. Co. v. Dougherty

• Decision Date: 04 May 1916
• Citation: 170 Ky. 10,185 S.W. 114
• Parties: LOUISVILLE & N. R. CO. v. DOUGHERTY.
• Court: Kentucky Court of Appeals

185 S.W. 114

170 Ky. 10

LOUISVILLE & N. R. CO. v. DOUGHERTY.

Court of Appeals of Kentucky.

May 4, 1916

Appeal from Circuit Court, Barren County.

Action by Ewell Dougherty against the Louisville & Nashville Railroad Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Benjamin D. Warfield, of Louisville, W. L. Porter, of Glasgow, and Sims, Rodes & Sims, of Bowling Green, for appellant.

Baird &amp Richardson, of Glasgow, for appellee.

CLARKE J.

Appellee sued the appellant to recover damages alleged to have been sustained by him from illness resulting from appellant's failure to properly heat a railway mail car after its arrival in Nashville, Tenn., from 2:35 a. m. until about 5:30 a. m on January 24, 1914, during which time, as a United States postal clerk, he was assorting mail in said car. The allegations of the petition are denied, and contributory negligence pleaded by appellant. Upon a trial appellee was awarded $1,000 damages, to reverse which judgment appellant is appealing.

It is conceded by appellant that it was its duty to properly heat said car while it was en route, but that it was not its duty to furnish heat for the car after its arrival at its destination in Nashville, except upon notice, either express or implied, that it would be necessary for the postal employés to remain in said car thereafter. Appellee admits that the car was properly heated until it arrived at Nashville, but contends that it was the absolute duty of appellant to furnish heat for the car so long as it was necessary for him to remain therein, without necessity for any notice that the car would be so used. The trial court adopting the contention of appellee, refused to permit appellant to prove that ordinarily the postal clerks left the car upon this run immediately upon arrival in Nashville; that when it was going to be used longer it was the custom to notify appellant, and the court refused to submit to the jury the question of notice, but by the instructions charged appellant with the duty of furnishing heat so long as it was needed without regard to notice.

It has been uniformly held, in the absence of statutory provision to the contrary, that a mail clerk in the discharge of his duties as such, and in going to and returning from his work, while on the train is a passenger, and that the railroad company owes him every consideration and duty that it owes a passenger. The authorities upon this question are annotated in 19 L.R.A. 340, 3 L.R.A. (N. S.) 218, and 26 L.R.A. (N. S.) 1058. Hence it was the duty of the railroad company to have furnished proper heat to make the postal car comfortable, in which appellee was employed as a postal clerk, so long as the car was so used with its knowledge, but undoubtedly this duty is limited to such times as the cars are being used for that purpose with the knowledge of the railroad company. It would be unreasonable to place upon the railroad company the duty to inspect each mail car upon arrival at a terminal to see whether or not it was going to be used thereafter, especially if such use upon a particular run was upon but rare occasions, and it was the custom, upon the rare occasions when the employés were necessarily detained in the car after its arrival, for the employés to give the company notice thereof. It would seem reasonable to permit the company under such circumstances to assume, in the absence of notice, that the car would not be used after its arrival at the terminal, and therefore unnecessary to provide heat for it.

The duty to furnish heat grows out of the duty to postal clerks as passengers, and they are passengers because the railroad company is carrying them for hire under contract with the United States. The relation, having been established by contract, implies consent of both parties, and consent of the railroad company can be asserted only with reference to such times and places as it has knowledge, either express or implied, of the presence of such clerks in the cars. It, therefore, results necessarily the relation cannot begin at a place or time, or continue until a time or place, of which the company has no actual or implied knowledge. This proposition would seem elementary, but we are fortunate in finding two cases in which its truth is recognized in reference to mail clerks while in mail cars not en route.

In the case of Wabash R. Co. v. Jellison, 124 Ill.App. 652 a postal clerk, while engaged in his duties in distributing mail in a mail car after its arrival at a terminal, and after it had been placed upon a switch track, was injured by the collision of another car with the mail car. The question at issue was whether,...