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

• Decision Date: 16 December 1913
• Citation: 156 Ky. 439,161 S.W. 239
• Parties: LOUISVILLE & N. R. CO. v. STRANGE'S ADM'X d
• Court: Kentucky Court of Appeals

161 S.W. 239

156 Ky. 439

LOUISVILLE & N. R. CO. v. STRANGE'S ADM'X d

Court of Appeals of Kentucky.

December 16, 1913

Appeal from Circuit Court, Logan County.

Action by Claude Strange's administratrix against the Louisville & Nashville Railroad Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Browder & Browder, of Russellville, and Benjamin D. Warfield and C H. Moorman, both of Louisville, for appellant.

S. R Crewdson, of Russellville, B. F. Procter, of Bowling Green and Hazelrigg & Hazelrigg, of Frankfort, for appellee.

CLAY C.

On November 22, 1911, Claude Strange, an employé of the Louisville & Nashville Railroad Company, was killed. His administratrix brought this action against the railroad company to recover damages for his death. From a verdict and judgment in her favor for the sum of $15,000, the railroad company appeals.

The accident happened about 5:40 on the morning of November 22, 1911. The decedent was a flagman or rear brakeman on a freight train consisting of an engine, a caboose, and 19 empty coal cars. These cars were all destined to certain coal mines situated in the state of Kentucky on the O. & N. division of the defendant's line of railway. The train was to begin its journey at Russellville and terminate its journey at Central City. None of the cars were destined for points outside of the state. At the time of the accident the train had been made up and was headed north. All that remained to be done was for the conductor and engineer to register out. Before starting, the train was several yards south of the register office. It then began to move slowly towards the office with a view of stopping there in order to enable the conductor and engineer to register out. The caboose was a box car, or ordinary freight car, temporarily equipped as a caboose. It had doors in its sides instead of in the rear and front. On the side near the center of the car was a step and handrail. When last seen, decedent was on the side step on the left-hand side. When the engineer reached a point near the register office, the speed of the train was reduced. The conductor left the train and went into the register room. About a minute later he was joined by the engineer.

The evidence for plaintiff is in substance as follows:

Hal King, who had worked as a brakeman for the Louisville & Nashville Railroad Company for about 2 1/2 years, and for the Illinois Central Railroad Company about 2 months, and who on the occasion of the accident was employed by the defendant, says that he was at a point in the yard about 90 yards from where decedent was killed. Decedent was standing on the side of the caboose as it passed him. The train was then going about four miles an hour. He heard a jerk of the cars and then heard some one halloa. He ran to the point of the accident and found decedent with both legs cut off and his face scarred up. Decedent was lying by the side of the track. The car had pulled over him. This was not over two minutes after the decedent was hurt. He asked decedent how he got hurt, and decedent said he "was jerked off." Decedent was hurt on the Hopkinsville crossing, and the caboose was about 2 car lengths north of that crossing. It was about 14 car lengths from the Hopkinsville crossing to the Memphis line crossing. There is a downgrade from the Hopkinsville crossing to the Memphis line crossing. The jerk that he heard was a hard jerk. "From the sound of these cars it was a very hard jerk." It was not a usual or customary jerk; "from the sound of the cars it must have been harder" than the customary jerk. He further stated that brakemen know when a train stops and starts that there is going to be some jerk. He himself had been jerked some. Never made a trip without some jerking. Did not know that he had ever heard one harder than that.

Phil Wilson, a section foreman employed by the defendant when decedent was killed, testified that he was down at the shops on the day of the accident. He testified that he heard the train when it moved down. It gave a hard jerk. In a few minutes he heard that a man was killed. Witness had been working around railroads all of his life, and was familiar with the noise of trains. On being asked whether the jerk of the train was a customary one or not, he answered, "It was harder than usual." He testified that the noise of the jerk came from about the Hopkinsville crossing.

H. L. Ryan, the conductor in charge of the train, testified that he told decedent that the train would pull down to the office and get orders, and directed the decedent to couple the air to the caboose. He then rode the train to a point near the office. On leaving the train he went into the office. The train was then flagged across the Memphis line. The train pulled over the crossing while he was in the office. Shortly thereafter the engineer came into the office. Pretty soon a man came in and said Strange was hurt. When they got to the point where Strange was hurt, he was on a cot. He only heard one jerk of the train. Witness' testimony as to the character of the jerk is as follows: "Q. What character of jerk was that? A. It was a tolerably hard jerk, but I have heard lots harder, and some not so hard; but it was a jerk that is liable to occur on any freight train. Q. Hard enough to jerk a man off? A. Very often the case, unless a man is holding on. When a man is not expecting a jerk, sometimes a very small jerk will jerk him off."

When decedent reached the office, he said, "Cap, they jerked me off."

Vernon Gorham testified that he had been in defendant's employ for 4 1/2 years. On the necessity of the jerk he testified as follows: "Q. In your judgment, would you regard it careful and prudent railroading for the engineer to move his engine down there at the rate of four or five miles an hour, and reduce the speed of his train as if he was going to stop, and apply the steam and start suddenly and jerk it? (Objected to.) A. No, sir. Q. Would there be danger in managing the train in that way? A. In the first place, he is liable to hit another train on the crossing. Somebody else might try the same thing, and he is liable to jerk the train in two; or to jerk some one off like it did happen. (Objected to.) *** Q. In stopping and starting freight trains, is there any way possible for the engineer to avoid the running in and running out of the slack of the train? A. Of course, he cannot avoid the slack running up in the train, but when he goes to stop he can stop easy. Q. He can reduce that jerk, but he cannot eliminate it entirely? A. No, sir. Q. It is common in the operation of freight trains, more or less jerking? A. Yes, sir. Q. It can't be avoided, can it? A. No, sir; can't avoid some jerking."

It further develops from the evidence of the engineer that when he got near the office the conductor jumped off and went to the office. He then passed the office and got a signal to go ahead. He gave the engine steam and started across the crossing. He never felt any jerk at all. A man on the engine cannot feel a jerk as well as a man on the rear end. He opened up the throttle gradually. As he approached the Memphis line crossing, the slack ran in. When he struck the grade and opened up his engine, the slack ran out. That causes the jerk. He did not open up his throttle violently or unusually. Every movement of the train was controlled by him. He shut the throttle off himself. There was no necessity for an unusual jerk.

Jess Ramsey, head brakeman, testified that he signaled the engineer across the Memphis line. He did this in response to a signal from the rear brakeman. In going across there was no necessity for a hard jerk, though it was impossible to start a freight train without a snatch. Norman Wyatt, the fireman, testified that the train had almost stopped when the signal to go over the Memphis line crossing was received. The engineer opened up his throttle and moved over the crossing. From what the engineer said, it was his understanding to let the engine toll to a certain point. When he reached the throttle, it was not entirely shut off. He pushed the throttle and shut it off.

It is insisted that the court erred in refusing to require plaintiff to elect whether she would proceed under the state law of the federal Employers' Liability Act.

In her petition plaintiff made the following allegation: "She says further that at the time of the injury aforesaid her said intestate was in the service of the defendant as brakeman upon its said train, which was then being used and operated on one of its highways of interstate commerce, and that said cars and trains were then being used in interstate commerce, or were being used in intrastate commerce, and that one of the two states of facts is true, and she does not know and cannot state which is true, and that her said intestate was killed while so engaged, as the direct result of one or more of all of said acts of negligence combined, and without fault on his part."

Before proceeding into trial, defendant made a motion to require plaintiff to elect whether she would proceed under the state law or Federal Employers' Liability Act April 22, 1908 c. 149, 35 Stat. 65 (U. S. Comp. St. Supp. 1911, p. 1322). This motion was overruled. Thereupon plaintiff's evidence was heard. Plaintiff was permitted to prove the number, ages, and sex of her children, and to show that her husband was a man of good moral character. At the conclusion of plaintiff's evidence the motion to elect was again overruled. Thereupon defendant's evidence was heard. At the conclusion of all the evidence, the court held that the case was controlled by the state law, and directed the jury in arriving at their verdict not to take into consideration any of the evidence in...