Louisville & N.R. Co. v. Winkler

• Decision Date: 18 February 1915
• Citation: 162 Ky. 843,173 S.W. 151
• Parties: LOUISVILLE & N. R. CO. v. WINKLER. [d1]
• Court: Kentucky Court of Appeals

173 S.W. 151

162 Ky. 843

LOUISVILLE & N. R. CO. v. WINKLER. ^[d1]

Court of Appeals of Kentucky.

February 18, 1915

Appeal from Circuit Court, Bullitt County.

Action by Ab Winkler against the Louisville & Nashville Railroad Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Chas H. Moorman, Chas. Carroll, and Benjamin D. Warfield, all of Louisville, for appellant.

C. P Bradbury, of Shepherdsville, and S. L. Trusty, of Louisville for appellee.

NUNN J.

In this action the appellee recovered $2,500 damages for personal injuries he received in an accident on a freight train upon which he was serving appellant in the capacity of conductor. The accident happened on the night of January 3, 1913, at what is called Crooked Hill, on the Knoxville branch of appellant's road, near East Burnstadt, in Laurel county. The action was brought under the federal Employers' Liability Act. Appellant defended on the ground that Winkler's injury was due solely to his own negligence. In another paragraph it pleaded that he was contributorily negligent, and by an amended answer it pleaded accord and satisfaction.

Appellant asks for a reversal because: (1) Winkler failed to prove that the accident in which he claims to have been injured was due to defendant's negligence; (2) under the federal Employers' Liability Act it was plaintiff's duty to sustain his case by a preponderance of the evidence, and a mere scintilla of evidence is not sufficient; (3) on the same authority a unanimous verdict of the jury is required, instead of a majority verdict, as was rendered in this case; (4) the damages were excessive; (5) the evidence overwhelmingly showed that Winkler possessed contractual capacity, and that it was the duty of the court to instruct the jury as a matter of law that Winkler could not recover in the face of his contract executed in settlement of the liability; and (6) error in instructions.

A statement of the facts will be necessary for a consideration of the questions raised as to evidence of appellant's negligence. The accident happened about midnight; the train was a double-header composed of 68 freight cars. Fifteen or 20 minutes before the accident the train had stopped at Copley, near the foot of Crooked Hill, and took up one or more cars. One of these, an L. & N. ballast car, was put in immediately behind the engine, so that it had the load of the whole train to carry. While they were switching at Copley, and these cars were being added to it, Winkler was at the rear end of the train, in the caboose, seated at a desk, working on his books or reports. This ballast car was coupled onto the engine by a brakeman. It is admitted that Winkler was superior in authority to the brakeman, and that his general duties included inspection of his train and cars. It is also conceded that it was the duty of the brakeman to make the same inspections, and particularly of cars coming directly under his observation as in this case. The brakeman says that, at the time he made the coupling, the drawhead on the ballast car was dropped down about an inch; that is, out of plumb. He admits, and no one disputes, that this was some indication of a defect in the fastening of the coupler, or drawbar, to the car. He did not look under the car, or make any examination of the fastenings, as he should have done, in view of the steep hill the train was about to climb and the heavy train this car had to carry. In about 15 minutes after the car was coupled on, and while the train was climbing Crooked Hill, and while Winkler was still seated and at work in the caboose, this drawhead pulled out, with the result that the brakes were instantly set on the train, and the sudden stop pitched Winkler forward about 10 feet, and his head struck the water cooler in the forward end of the car. A gash was cut to the bone on the right side of his head, and he suffered other injuries which at the time he thought were of a minor nature. Recovering himself, he went to the front of the train, and found that the drawhead had pulled out of this ballast car, and saw it lying there on the track. In describing the condition as he saw it, he says:

"It was the drawbar, and the old draft timbers pulled out with the drawbar. * * * It looked like the draft bolts had split out through the car. * * * It was a kind of an old split where it pulled out."

This evidence as to the condition of the timber and the old split and bolts pulling out is not denied. Neither is there any denial of the fact that at the time the car was coupled the drawbar was hanging down at least an inch out of alignment. There is difference of opinion among the witnesses as to whether the hanging down of the drawbar indicated that its fastenings to the car were dangerous. But the proof amounts to more than a scintilla, and is sufficient, in our opinion, to warrant a submission of the case to the jury on the proposition as to whether the railroad company negligently failed to perform the duty of exercising ordinary care to have and keep the drawbar and those attachments and fastenings under the car in a condition reasonably safe and sufficient for use in the train in question.

Appellant says that a mere scintilla of evidence is not sufficient to sustain a case under the federal Employers' Liability Act. It contends that the court should have instructed the jury that they could not find for the plaintiff unless they believed from a preponderance of the evidence that his theory of the case as averred in the petition is true. In the recent case of L. & N. v. Johnson's Adm'r, 161 Ky. 836, 171 S.W. 852, this question was disposed of adversely to appellant's contention in the following language: "If the evidence in a case heard and determined under this act would be sufficient to take the case to the jury, and support the verdict if the suit had been brought under the state law, it would be sufficient to take the case to the jury and support the verdict if it was brought under the federal act. And it is the well-settled practice in common-law actions in this state that the case should go to the jury if there is evidence conducing to support the averments of the petition constituting the grounds of action relied on for recovery, although the weight of the evidence, both numerically and in probative value, may be with the defendant."

On the question of contributory negligence, the court properly instructed the jury under the federal Employers' Liability Act that:

"It goes by way of diminution of damages, if any, in proportion to his negligence, as compared with the combined negligence if any, of the plaintiff and the defendant, if any."

It is not contended that appellant was guilty of any negligence in the way of unusual or unnecessary jerks, or any improper operation of the engine. The only negligence attempted to be shown on the part of the appellant was as to the alleged defective condition of the drawbar and its fastenings. As we have already indicated, the proof in this regard was undisputed, and it was sufficient to take the case to the jury.

The only pretense that the appellee, Winkler, was guilty of contributory negligence, arises from the fact that he was conductor of the train, and was superior to the brakeman, who coupled this defective car...