Louisville & N.R. Co. v. Weldon

• Decision Date: 18 June 1915
• Citation: 177 S.W. 459,165 Ky. 654
• Parties: LOUISVILLE & N. R. CO. v. WELDON.
• Court: Kentucky Court of Appeals

177 S.W. 459

165 Ky. 654

LOUISVILLE & N. R. CO. v. WELDON.

Court of Appeals of Kentucky.

June 18, 1915

Appeal from Circuit Court, Webster County.

Action by Dan Weldon against the Louisville & Nashville Railroad Company. From a judgment for plaintiff, defendant appeals. Reversed.

Chas H. Moorman, of Louisville, Yeaman & Yeaman, of Henderson Benjamin D. Warfield, of Louisville, and N. B. Hunt, of Dixon, for appellant.

Baker &amp Baker and Bourland & Blackwell, all of Dixon, for appellee.

HANNAH J.

The Diamond Coal Company operates a coal mine in Webster county on the line of the Louisville & Nashville Railroad Company. The tracks of the coal company were so arranged that empty cars were placed on the upper end of a switch, which was constructed on a downgrade through the tipple and down to the scales where the cars were weighed. The empty cars, as needed, were dropped or let down by gravity to the tipple, where they were loaded, and then let down to the scales, the movement of the car being controlled by the hand brakes thereon. On September 30, 1912, appellee, Dan Weldon, was injured while dropping a loaded car from the tipple down to the scales, his injuries rendering necessary the amputation of a leg; and, alleging that same were caused by a defective brake on the car, he sued the Louisville & Nashville Railroad in the Webster circuit court to recover damages therefor, the railroad company having delivered the car to the coal company. A trial having resulted in a verdict and judgment in plaintiff's favor in the sum of $600, the defendant appeals.

Appellee and one John Cummins were, on the date mentioned, employed by the coal company, their duties being to move empty cars down to the tipple to be loaded, and to take them on down to the scales after they were loaded. Cummins had brought the car by which appellee was injured down from the head of the "empty" track to the tipple. In doing so he discovered that the brake on the car was defective, in that the chain was so long that it was not possible to cause the brake shoe to press the wheels of the car with sufficient force to give absolute control thereof; but he did not communicate this fact to Weldon; he testified that the fact that the chain was too long was plainly discernible from the front of the car. After the car had been loaded at the tipple, appellee was performing the duty of dropping it from the tipple down to the scales. He testified that it was about 100, or 150 yards from the tipple down to the scales, and, concerning the manner in which he was injured, as follows:

"I started to let that car down, and I got on it, and got a little piece from--well, about two-thirds of the way from where it was standing, down to the scales--and I noticed a pinch bar laying on the right-hand rail. I applied the brakes, and set them up and put the dog in the ratchet, and got down and went down, and got down on the left side as I was standing on that side; and I went down and got nearly down there; I crossed over to go get the pinch bar off the track, and I reached down to get the pinch bar, and just as I got about straight, I noticed the car right up on me, and I threw it down, and about that time, it hit me."

He further testified: That when he discovered the pinch bar, the car was moving a little faster than a man walking, and when asked whether, when he got off of the car, he walked or ran down to where the pinch bar was, he said, "I was just jogging along. Q. Sort of a trot? A. Yes, sir." That when he got to where h...