Louisville & N.R. Co. v. Stewart's Adm'x

• Decision Date: 19 December 1913
• Citation: 156 Ky. 550,161 S.W. 557
• Parties: LOUISVILLE & N. R. CO. v. STEWART'S ADM'X.
• Court: Kentucky Court of Appeals

161 S.W. 557

156 Ky. 550

LOUISVILLE & N. R. CO. v. STEWART'S ADM'X.

Court of Appeals of Kentucky.

December 19, 1913

Appeal from Circuit Court, Warren County.

Action by William H. Stewart's administratrix against the Louisville & Nashville Railroad Company. From a judgment for plaintiff, defendant appeals. Reversed, with directions to grant new trial.

Benjamin D. Warfield, of Louisville, and Sims & Rodes, of Bowling Green, for appellant.

Wright & McElroy, of Bowling Green, and Hazelrigg & Hazelrigg, of Frankfort, for appellee.

TURNER J.

On September 5, 1908, William H. Stewart, an engineer employed by appellant, while running a train from Paris, Tenn., to Bowling Green, Ky. was injured, and as result thereof died 22 days later from inflammation of the brain. Thereafter his wife qualified as administratrix, and instituted this action as personal representative seeking damages under the Employers' Liability Act of April 22, 1908 (chapter 149, 35 Stat. 65 [U. S. Comp. St. Supp. 1911, p. 1322]). The jury returned a verdict for $20,000, and from a judgment on that verdict this appeal is prosecuted.

Upon the occasion in question the train was coming north from Paris, Tenn, towards Bowling Green, Ky. When it reached Cumberland City, Tenn., it met a south-bound freight train and, accordingly, the north-bound train went in on the single switch which was at that point, so that the freight train might proceed south; but there was also due at that point a south-bound passenger train in a short time, and Stewart's train had to wait there until it also went south. Stewart's train had to clear the main track first to let the freight train proceed south, and later to permit the passenger train to pass. Stewart's freight train was a long train, and there were several cars standing on the side track when his train went in on it. The cars so standing were coupled to the engine and pushed ahead of the engine on the side track as it proceeded north. When the freight train had gone far enough north to clear the main track at the south end of the switch to enable the freight train standing on the main track to pass south, the cars so pushed ahead of the engine on the side track were either on the main track at the north end of the switch or so close to the main track as to foul it, or not to be "in the clear" of the main tracks upon which the passenger train which was shortly expected from the north must pass. The flagman in charge of the rear end of the train, after his train was on the switch, threw the switch and locked it, as it was his duty to do, so that not only the freight train but the expected passenger train might proceed south. After the freight train had gone south, the conductor, who was up near the engine and cars near the north end of the switch signaled the engineer to back his train, evidently with the purpose of leaving the north end of the switch clear so that the passenger train might pass; a flagman had already been sent out to flag the approaching passenger train to the north.

There were three crossings going over the side track, one very near the south end of the switch, and the other two were blocked by the standing freight train. It was the duty of the company to keep these crossings open, and the rear flagman, as soon as he had closed the switch, started up to the middle crossing to see if anybody wanted to get through, and if necessary to open it; but, before he reached the middle crossing, the conductor up at the front of the train, gave the engineer a signal to back his train, and this he proceeded to do. The rear flagman, whose duty it was not only to keep the crossings open, but to throw the switch at the south end so that the switch would not be split, and to avoid a possible derailment of cars, immediately started back while the train was moving for the purpose of throwing the switch but when he reached the rear of the train, doubting whether he had time to unlock and throw the switch before the caboose reached it, he put on the emergency air brake from the rear of the train called an angle-cock, and stopped the train before the caboose reached the switch, and just about where it fouled the main track. The putting on the emergency in this way from the rear had the effect to immediately stop the whole train, and cause a considerable jerk or jar, and it is claimed by the plaintiff that this jerk or jar threw him up against the side of the cab of the engine and bruised his shoulder and injured his head in such way as resulted in his death.

The crew of the train consisted of five men: Jones, the conductor; Stewart, the engineer; Minor, the brakeman at the front of the train; and Hill, the flagman at the rear of the train; and Sorrels, the fireman. Jones, the conductor, did not testify upon the trial; but we have the testimony of Minor, Hill, and Sorrels. The testimony is that the siding was not long enough to hold Stewart's train and the cars which were already on it, and at the same time be clear of the main track at both ends, so that it was necessary to back his train till he cleared the main track at the north end of the switch so that the passenger, a much shorter train, could pull down the main track and stop clear of the north end of the switch till the freight train could pull up north so as to clear the main track at the south end; in other words, as expressed by railroad men, they had to "saw-by." Sorrels, the fireman, testified that the conductor gave Stewart the...