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

Decision Date19 January 1915
Citation162 Ky. 209,172 S.W. 517
PartiesLOUISVILLE & N. R. CO. v. WALKER'S ADM'R.
CourtKentucky Court of Appeals

Appeal from Circuit Court, Whitley County.

Action by Ancil Walker's Administrator against the Louisville &amp Nashville Railroad Company. From a judgment for plaintiff defendant appeals. Affirmed.

B. D Warfield and C. H. Moorman, both of Louisville, and Hiram H Tye, of Williamsburg, for appellant.

O'Rear & Williams, of Frankfort, and Rose & Pope, of Williamsburg, for appellee.

CARROLL J.

The Louisville & Nashville Railroad Company is engaged in interstate commerce, and Ancil Walker, on the day of his death, was employed by it as a laborer in such commerce. Whether he was so employed immediately at the time of his death is a much disputed question, and will be later carefully considered. At the time of his death he was about 30 years of age and left surviving him a widow and one child about 3 years of age. In this action by his administrator to recover damages for his death there was a verdict and judgment accordingly for $4,750. Before stating the grounds of reversal relied on by counsel for appellant a somewhat extended statement of the facts should be made in order that the questions submitted for review may be intelligently disposed of.

The railroad company at the time Walker came to his death was engaged in repairing or rebuilding a trestle known as the Oak street trestle, situated on its line of road in the state of Tennessee and near the city of Knoxville, and Walker was employed as a laborer in this work. The foreman of the crew engaged in this work was A. C. Crutchfield, who also operated the boarding cars in which the men lived. Crutchfield had charge of the bridges of the railroad company in a territory traversed by its line of road extending from a point in Kentucky to a point in Tennessee, and the boarding cars, which were owned by the railroad company, were moved by it to the different places at which Crutchfield and his men were ordered to work. The matter of boarding the men and the amount charged for this service was under the control of Crutchfield, the railroad company having apparently no direct concern in it, although it would, upon request of Crutchfield, take out of the wages due the men the board for his benefit.

On the day Walker was killed, the boarding cars, in which the men, including Walker, boarded and stayed at night, were standing on the tracks of the company something over a mile from the trestle on which this crew of men were at work, and the men went from these boarding cars to their work each morning and returned to them at the close of the day. Sometimes the men went to and from the boarding cars to their work on hand cars of the company, and at other times they walked. On the day in question the men started from their work to the boarding cars on hand cars, but after going a short distance were compelled to take the hand cars off the track on account of obstructions, and they were then directed by Crutchfield, the foreman, to walk to the boarding cars, and this they set out to do by walking on the track of the company as it was usual and customary for them to do when not riding, there being in fact no other convenient or practicable way to go to and from the boarding cars and the work except on the track. Between the place of work and the boarding cars the track for a short distance ran on a high trestle that the men had to walk across, and it appears that on the outside of each rail of the track, which was entirely unprotected by barriers of any kind, there was a running board upon which the men could stand or walk, or they could walk between the rails on the ties. As Walker was walking across this trestle, a car known as a push car, owned by the company, came down the track from the direction in which Walker was walking. For the purpose of letting this car, which was being operated by two employés of the company, pass, he stepped on the plank outside the rail and, while so standing, was struck and knocked from the trestle by a large splinter that projected several inches over the side of the car from a piece of timber on the car to which it was attached. The piece of timber from which the splinter projected, as well as the other pieces on the car, consisted of material which the company found it could not use in its work and the men who were operating the car were taking these pieces of timber to their homes after the day's work was over for the purpose of using them as kindling or firewood, having been permitted by an assistant foreman of the company, who had control of the car, to use it for the purpose of carrying home the timber that another foreman of the company had told them they might take.

Brad Thomas, one of Crutchfield's crew, was walking on the trestle with Walker, but a few feet ahead of him. He testified that he saw the push car coming when it was a short distance away and stepped off the track onto the running board, but did not see the piece of timber projecting over the side of the car until one of the men on the car holloed at him to "Watch that piece!" That upon receiving this warning he at once placed himself in a more careful position and holloed at Walker, who was close behind him, to "Look out!" He further testified that the projecting piece of timber struck his clothing, and also struck Walker and knocked him off the trestle, and that at the time the push car passed him it was going down a slight grade at a speed of about 10 miles an hour, the two men in charge of it riding on the side of the car, pushing it with their feet. He also said that if it had not been for this projecting piece of timber Walker could have safely stood where he was standing when knocked off.

The evidence for the railroad company was to the effect that Hobbs and Collins, the men operating this car, did not have authority from the foreman either to use the push car or get the timber they were carrying on it. It also appears in the evidence that there were places 8 or 10 feet apart in this trestle from which Walker fell on which a person could stand and be entirely out of the way of passing trains, and there is some suggestion to the effect that if Walker had been standing on one of these places, he could not have been hit by the projecting splinter, and that when he saw the car coming he should have gotten to one of these places of safety. It is also a theory of the company that Walker fell from the trestle and was not knocked off by the splinter. The evidence, however, shows that if the splinter had not been projecting from the car, it would have passed Walker without touching him, and here it may be observed that, although Walker could have seen, and doubtless did see, the push car approaching him, it seems apparent that he did not see the projecting splinter, nor indeed did Thomas, who was immediately ahead of him, until one of the men holloed at him to look out for it. In short, there is really no evidence of contributory neglect on the part of Walker in the record, although this feature of the case was submitted to the jury for their consideration in appropriate instructions, and we may also assume from the evidence that Walker was knocked off the trestle by the splinter.

Returning now to the question whether Walker at the time he came to his death was, within the meaning of the federal act, in the employment of the company, the argument is made by counsel for the company that the protection afforded by this act ended when Walker quit his work on that day, and that he was not in the employment of the company at the time he was killed, as his day's work had then ended and he was going to his boarding place. It is further insisted that if Walker when going to his boarding place, could be regarded from any standpoint as an employé, he was not, within the meaning of the act, an employé engaged in interstate commerce. We think, however, that if he should be considered at that time as an employé at all, he was an employé engaged in interstate commerce, because this was the only kind of employment in which he was engaged. At the time of his death he was either an employé engaged in interstate commerce or he was a mere licensee using the tracks of the company in going from his place of work to the boarding car. It is very clear that while actually engaged at work for the company he was an employé engaged in interstate commerce, and we think it equally clear that the moment his day's work ended he was not thereby converted into some other kind of an employé, but that he either retained his character as an interstate employé, or became, when his work ended, and while going to the boarding car under the circumstances stated, a licensee. After giving to this question careful...

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