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

• Decision Date: 10 October 1907
• Citation: 104 S.W. 732,126 Ky. 589
• Parties: LOUISVILLE & N. R. CO. v. HERNDON'S ADM'R.
• Court: Kentucky Court of Appeals

104 S.W. 732

126 Ky. 589

LOUISVILLE & N. R. CO. v. HERNDON'S ADM'R.

Court of Appeals of Kentucky.

October 10, 1907

Appeal from Circuit Court, Hopkins County.

"To be officially reported."

Action by W. H. Herndon's administrator against the Louisville &amp Nashville Railroad Company. From a judgment for plaintiff defendant appeals. Affirmed.

Benjamin D. Warfield, Waddill & Dempsey, and Chas. H. Moorman, for appellant.

Jonson & Jennings, for appellee.

NUNN J.

Appellee's intestate was killed while in the employ of appellant as brakeman, and at work in its yards at Guthrie, Ky. February 9, 1905. The evidence shows, without contradiction, that when killed he was between two cars, standing six or eight feet apart, and was inspecting the coupling apparatus or adjusting the brake knuckle lock. This was in his line of duty as shown by oral evidence, and rules number 130 and 224 of appellant prescribing the duties of a brakeman and other employés. Rule number 224 reads as follows: "Rule 224. All employés are hereby instructed, each for himself, to examine so as to know the kind and condition of the draw-heads, drawbars, and coupling apparatus, and are prohibited from placing in a train a car with defective coupling until they have first reported its defective condition to the yard master conductor, or proper person in authority. Sufficient time is allowed and must be taken by employés in all cases to make examinations." Rule 130 reads as follows: "Rule 130. Employés of every grade are warned to see for themselves, before handling or using them, that the cars, machinery and tools, which they are expected to handle or use, and the premises upon which they are expected to work, are in proper condition for the service required, and if not, to put them in proper condition, or see that they are so put before using them." The deceased was directed by the yardmaster at Guthrie to take the engine and crew and take out some freight cars that were situated on the north end of track No. 4 in the switchyard, and when killed was there in the performance of this duty. The switching crew with engine located at Guthrie yards, about 8 o'clock in the evening, moved south on track No. 3 or 5, either of which is about six feet from track No. 4; and while deceased, with his crew, were making up their train on track 4, kicked onto track 4, at the south end of the switchyard, two cars, and in a few moments afterwards either kicked or pushed three or five cars onto track 4. They stated that they set the brakes on one or two of these cars on the north end of them. There is no pretense that there was any notice or warning of any kind given to the crew, or any member of the crew, with which deceased was engaged, that the switch crew intended to place these cars into the south end of the track No. 4. From the evidence this track was slightly downgrade to the north, and it is pretty certain, from the evidence, that these cars rolled or were shoved down track No. 4 and struck the cars standing thereon, which deceased's crew were preparing to take out, caught deceased between the cars, and crushed him.

The engineer under whom deceased was laboring testified that, after he backed onto track No. 4 and reached the cars that he was to pull out, he never moved his engine either backward or forward to the time that Herndon was killed; that he was in his cab with his head out of the window, looking back for signals, and saw some one with a lantern going in between the cars as though he was examining the couplings and adjusting the air hose. He could not tell at the time who this person was, for it was dark, but it turned out to be Herndon. He further stated that deceased went into the place where he was killed and remained from one to two minutes, when, without any notice or warning to him, the cars were shoved or rolled with such force as to shove his engine six or eight feet; that he checked it with the emergency brakes. The conductor testified that the deceased was performing his duty; that he passed along, examining the train and seals on the cars, and had passed deceased about a car length when the crash came; that he immediately returned, found deceased lying upon the ground under the cars, and on pulling him out he asked how it occurred. He could hardly speak, but he thought he understood him to say that he was fastening the air hose. He was carried to the hospital after he was injured. The physician who attended him and one other witness testified, for appellant, that the deceased told them that he was adjusting the knuckle lock when he was caught. One or two witnesses testified that on the next morning they found, at the place where deceased was injured, a piece of a knuckle lock, or pin, which had been broken, a part of the break appearing old and part new. All the witnesses who testified on the subject stated that it was necessary to remove this broken piece, which could have been done by deceased in two or three minutes, and the remaining part of the pin would have performed the service required of it. Appellant introduced several witnesses who testified that, by custom or some private or unpublished rule of the company, the switch engine had the right of way over all others in the yards at Guthrie, and that it was not the duty of those in charge of it to give any notice or warning of its movements to other crews laboring in the yards; that such crews had to take the necessary steps to protect themselves from injury. Appellee's proof contradicted this. Even admitting that such rule or custom existed, it should not be upheld, at least to the extent that it absolves the switch crew from giving notice or warning when about to kick or push cars against standing cars that another crew is preparing to take out. This switch engine passed by these standing cars a few minutes before the injury, and must have seen this engine and crew on track No. 4 preparing to take out these cars. The switch crew all testified that they knew the rules of the company required the brakeman in such case to go between the cars, examine the couplings, and attach the air hose, that this duty could not be done without going between the cars. The custom would be inhuman that would allow a switching crew, without notice or warning, to shove or kick other cars against such standing cars. In the case of Southern Ry. in Kentucky v. Otis' Adm'r, 78 S.W. 480, 25 Ky. Law Rep. 1686, this court said: "There were some dead cars, on what is known as the 'long siding,' coupled together, but the air connections had not been made. Conductor Clifford directed Otis to make these connections, and, while Otis was performing this work, those in charge of the Hampton train had uncoupled it, and backed a portion of that train in on this long siding and struck these dead cars, between which Otis was situated, knocked him down, and the wheels passed over his head, killing him instantly. The proof shows that those in charge of the Hampton train did not give any warning signal, either by blowing the whistle or ringing the bell, of the intention of backing the train. The deceased was in a position between the cars where he could not see the train backing. * * * Under the proof in this case, it was negligence on the part of those in charge of the Hampton train to back in on this siding without giving any warning thereof by blowing the whistle or ringing the bell." In our opinion the evidence in this case shows gross negligence on the part of those in charge of the switch engine. It shows a reckless disregard on their part for the rights and lives of deceased, and those engaged with him.

The instructions of the court are in the usual form in such cases, and contain no error, at least none prejudicial to the rights of appellant.

Appellant insists that the Kentucky Bank & Trust Company, a corporation, is not authorized by the laws of this state to act as public administrator,...