Louisville & N.R. Co. v. Keiffer

• Decision Date: 24 November 1908
• Citation: 113 S.W. 433,132 Ky. 419
• Parties: LOUISVILLE & N. R. CO. v. KEIFFER.
• Court: Kentucky Court of Appeals

113 S.W. 433

132 Ky. 419

LOUISVILLE & N. R. CO. v. KEIFFER.

Court of Appeals of Kentucky.

November 24, 1908

Appeal from Circuit Court, Warren County.

"To be officially reported."

Action by L. J. Keiffer against the Louisville & Nashville Railroad Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Nunn J., dissenting.

Benjamin D. Warfield and Sims, Du Bose & Rodes, for appellant.

Proctor & Herdman, Wright & McElroy, and Greene & Van Winkle, for appellee.

HOBSON J.

L. J Keiffer was the engineer on train 111, which left Bowling Green for the South on August 19, 1904. The second and third sections of train 115 had left Bowling Green that afternoon several hours before Keiffer's train. One of the sections had a leaky engine, and by reason thereof this section lost time. At Erin, Tenn., an order was given these two sections to consolidate and run as a double-header from that point to Paris, Tenn. Keiffer there received an order to follow train 115 to Paris; the order informing him of the consolidation of the two sections, but not informing him why it had been done. Train 115 left Erin shortly before 12 o'clock at night and Keiffer had to wait there until the hill engine returned to pull his train over the hill, as well as for a passenger train which had the right of way. Train 115 ran from Erin to Big Sandy, a distance of 23 miles, without further trouble from the leaky engine after it passed over the hill near Erin. It stopped at Big Sandy to take water. One of the engines took water. It then backed up for the other engine to take water and started out, but as it pulled out a knuckle broke about the twelfth car back from the engine. There were 29 cars in the train. They undertook to mend the knuckle, but could not do it. They then undertook to put in an emergency knuckle, and, while they were doing this, Keiffer's train ran into them from the rear, about 3:30 a. m. He had left Erin about 2:30 a. m., and, according to the time of train 115, it should have been at Paris, and would have been there, perhaps, but for the breaking of the knuckle, which had delayed them at Big Sandy 10 or 15 minutes.

The proof as to the cause of the collision is conflicting. The evidence for Keiffer is, in effect, that the men on train 115 gave him no warning of its presence on the track until he was within a few feet of it, and it was then too late for him to avoid the collision. The evidence for the railroad company is to the effect that Keiffer was running 25 or 30 miles an hour, when, under the rules, he should have been running only 12 miles an hour, and that timely warning of the presence of train 115 on the track was given him, if he had been running at the proper speed. The rules required that train 115 should send a flagman back something over a quarter of a mile, and that he should give warning by placing torpedoes on the track, as well as by a light. This, it is conceded, was not done. The proof for the railroad is that the flagman went back about 200 yards, while Keiffer says he was less than 100 feet from the back of the train. By the collision, Keiffer's engine ran through both cabooses, a car load of flour which was standing in front of them, and knocked the end out of the car beyond the one containing the flour. The engine turned over and caught Keiffer under it. He was badly mashed and bruised, and brought this action to recover for his injuries. On a trial of the case in the circuit court, he recovered a verdict and judgment for $25,000, and the railroad company appeals.

The action having occurred in the state of Tennessee, the defendant pleaded the law of that state in bar of a recovery. By the law of Tennessee the contributory negligence of the injured employé of a railroad company bars his right of recovery, where it is either the proximate cause of the accident or directly and materially contributes thereto. On the other hand, if the negligence of the injured servant was neither the proximate cause of the accident, nor directly or materially contributed thereto, but only indirectly and remotely contributed to bring about the accident, such negligence would not bar a recovery, but would only mitigate the damages. By the law of Tennessee, also, the men on one train in the service of the railroad are fellow servants of the men on another train, and no recovery can be had by one for an injury due to the negligence of the other. This was so declared by the Supreme Court of Tennessee in L. & N. R. R. Co. v. Dillard, 114 Tenn. 240, 86 S.W. 313, 69 L. R. A. 746, 108 Am. St. Rep. 894, and, although that case was decided after this injury occurred, it merely declared the law; the court simply holding that the law as thus declared had always been the law of Tennessee, there being no statute governing the question. As to what is the law in Tennessee there is no conflict in the evidence; the witnesses introduced both by the plaintiff and the defendant agreeing as to what the law is in that state.

But it is insisted that, as the railroad company is a citizen of Kentucky, and as Keiffer is also a citizen of Kentucky, the courts of this state should administer its own laws as between its own citizens. It is not material where the parties reside. When the injury was done in Tennessee, a cause of action arose there. The rights of the parties as they then were cannot be affected by the fact that the suit was not brought there, but in this state, for the courts of this state, simply enforce the cause of action which plaintiff has. In 2 Wharton on the Conflict of Laws, § 478b the rule is thus stated: "The reciprocal rights and duties of the parties and the defenses that may be invoked to escape liability for a breach of duty are governed by the law of the place where the tort occurred, rather than by the law of the forum. This principle has been applied, inter alia, to the reciprocal rights and duties of master and servant and of carrier and passenger. So the question as to what constitutes, and the effect of, contributory negligence, or...