Louisville & N.R. Co. v. Carter

• Decision Date: 25 November 1927
• Parties: LOUISVILLE & N. R. CO. v. CARTER.
• Court: Kentucky Court of Appeals

10 S.W.2d 1064

226 Ky. 561

LOUISVILLE & N. R. CO. v. CARTER.

Court of Appeals of Kentucky

November 25, 1927

As Modified, on Denial of Rehearing, December 14, 1928.

Appeal from Circuit Court, Franklin County.

Action by Sidney Carter against the Louisville & Nashville Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Woodward Warfield & Hobson and Ashby M. Warren, all of Louisville, and Morris & Jones, of Frankfort, for appellant.

Leslie W. Morris and Marion Rider, both of Frankfort, for appellee.

DIETZMAN J.

From a judgment in favor of the appellee in the sum of $22,895.25 subject to a credit of $7,895.25, for personal injuries received by him while working as a brakeman on a freight train which appellee claimed the appellant was then operating, the latter brings this appeal.

The appellee, for a number of years prior to the accident of which he complains, was an extra brakeman and extra fireman in the employ of the Frankfort & Cincinnati Railroad Company which we shall hereafter refer to in this opinion as the F. & C. The F. & C. extended from Frankfort, Ky. through Georgetown, Ky. to Paris, Ky. On August 26, 1921, the appellee was working as a brakeman on a freight train bound from Frankfort to Paris. The F. & C. possessed but one engine, and this engine was required to do all of the work which this railroad had to do, not only that of pulling its freight and passenger trains between termini, but also that of what little switching the road had to do. It is conceded that in the train which left Frankfort for Georgetown there was an interstate shipment, for which reason the appellee, while acting as brakeman at least on that train, was engaged in interstate commerce. When the train reached Georgetown, it stopped, and the engine was uncoupled.

What next happened is in dispute. The appellant claims that out of the train which came from Frankfort to Georgetown two empty box cars were removed, and then coupled to an empty box car which was standing at the Georgetown station. These three empty box cars were then pushed by the engine over to the Southern Railroad junction, about one-half mile away, for the purpose of delivery to the Southern Railroad. Appellant rests this claim on a conductor's report, which was filed by it over appellee's objection on the trial of this action, and which purported to cover the movement of this train from Frankfort to Paris. On this report there appears as moving in the train which left Frankfort box car "So. Ry. 16015." The appellant's conductor testified that he was on the cut of cars being pushed over to the Southern Railroad when the accident happened, and was riding "on the third car from the end, which was Southern 16015."

From this appellant argues that it established that the three empty box cars being moved to the Southern depot comprised one of the cars that had moved from Frankfort to Georgetown, and, as this part of the trip was undoubtedly interstate, the character of the trip was therefore not changed by the movement from the Georgetown station to the Southern depot. On the other hand, the appellee, when put upon the stand in rebuttal, testified that these three empty box cars were picked up at Georgetown and pushed over to the Southern depot. There was earlier testimony to the effect that, when this train reached Georgetown from Frankfort, the crew first set out the loaded freight car containing the interstate shipment referred to then cut the engine off from the train and coupled it up "to these three cars (the empty box cars in question) ahead of us, and then pushed them toward the Southern depot."

Thus we see the proof as to where these three cars came from was in conflict. If the jury believed the appellant's proof, then it was bound to find that this was an interstate movement. But, if it accepted the appellee's proof, then, as these three empty box cars comprised no part of the train bound from Frankfort to Georgetown or Paris, and as their sole movement was from the Georgetown station to the Southern junction, entirely intrastate, and as it was not necessary that these cars be moved in order that the Frankfort to Paris train could proceed on its way, and as the F. & C., having but one engine, had to use it to move these three box cars, not for the purpose of expediting in any way the original journey on which this engine had started nor as any part of that journey, but only to perform a switching service in no wise connected with that journey, the jury was authorized to find, as it did, that appellee was engaged at the time of his accident in intrastate commerce. The court by instruction A peremptorily told the jury that, if the appellee was at the time of his injury engaged in interstate commerce, as defined in that instruction, then it should find for the appellant; but, if appellee was not so engaged in interstate commerce, then it should be governed in its decision by the other instructions given in the case.

No complaint is made that this instruction A, at least as far as it went, improperly defined interstate commerce. If the appellant under our practice desired any more ample definition of interstate commerce, it should have offered one, and this it did not do. Having failed to do so, it may not now complain of the lack of a more ample definition. Hatfield v. Payne, Agent, 195 Ky. 310, 242 S.W. 32. See, also, Kroger Grocery & Baking Co. v. Hamlin, 193 Ky. 116, 235 S.W. 4. Indeed, on this branch of the case, appellant does not even now criticize the instruction, except to the extent that it insists that the instruction was erroneous, because it was entitled to a peremptory instruction. Of course, appellant was entitled to a peremptory instruction only if the evidence was undisputed that the movement of the three empty box cars at the time of the accident was an interstate movement. We have seen that where these box cars came from was in dispute. If they came from where the appellee said they did, the movement was an intrastate movement, as we shall presently discuss more fully. If they came from where the appellant said they came, the movement was interstate. This issue was submitted to the jury, and as they found a verdict for the appellee, which they could not have done, but for their finding that the cars moved as claimed by the appellee, their finding is final on such disputed issue. In this the instant case is governed by that of L. & N. v. Parker's Adm'r, 242 U.S. 13, 37 S.Ct. 4, 61 L.Ed. 119.

Now, while the engine was pushing these three empty box cars from the Georgetown station to the Southern junction, the train collided at Penn's crossing with an automobile. The evidence shows practically without contradiction that this public crossing was a very dangerous one, for which reason the F. & C. had erected a crossing bell there. This bell was out of order at the time of the accident and had been so for a couple of weeks. The collision was undoubtedly caused because of the failure of this crossing bell to ring and so warn the on-coming automobile of the approach of the train. As a result of this collision the box cars were derailed, throwing the appellee, who was riding on the top of one of them, into an adjacent field, breaking his leg. He was confined in the hospital from the 26th of August, 1921, to the 19th day of the following November, when he was allowed to go home, but he had to return to the hospital on the 15th day of December, and was not discharged until the 22d day of the following January. During this time he suffered very great pain, and underwent five operations in the effort to save his leg, but to no avail. The leg finally had to be amputated five and one-half inches from the center of the knee cap.

After the appellee was hurt, the F. & C. kept him on the pay roll and continued to pay him his salary just as though he was working for it. It also paid his hospital bills. Under just what circumstances these payments were made is in dispute, and we will refer to this matter later on in this opinion. These payments amounted to the sum of $7,895.25, which is the credit given on the verdict as hereinbefore mentioned. In October, 1925, the F. & C. went into the hands of a receiver, whereupon the appellee brought this suit against both the F. & C. and the appellant, Louisville & Nashville Railroad Company, to recover for the injuries he had received. The appellant was made a party to this suit on the theory that in fact and in truth it was operating the railroad between Frankfort and Georgetown at the time appellee was injured under the alleged fiction of the F. & C. corporate entity. We are therefore met at the outset of this case with the question whether or not the appellant is responsible for the appellee's injuries, conceding for the nonce that the F. & C. would be so. This question necessitates a more elaborate statement of the facts than has so far been given. Many years ago the people of Franklin, Scott, and Bourbon counties, desirous of obtaining freight and passenger competition for the benefit of their communities, built the F. & C. It was financed largely through a bond issue. The capital stock of the F. & C. road consisted of 1,600 shares, of the par value of $25 per share. The road at first was successfully operated. The appellant, operating a line from Frankfort through Lexington to Paris, was a competitor. In 1901, Chas. E. Lewis, representing the appellant, bought in the entire capital stock of the F. & C., and finally transferred this stock to the appellant, which remained the undisclosed owner of it until the year 1909. About this time the appellant caused the F. & C. to execute to it a deed embracing all of its property, including its rolling stock and terminals. The deed covering this property...