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

• Decision Date: 04 May 1928
• Citation: 9 S.W.2d 212,225 Ky. 447
• Parties: LOUISVILLE & N. R. CO. v. MORGAN'S ADM'R.
• Court: Kentucky Court of Appeals

9 S.W.2d 212

225 Ky. 447

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

Court of Appeals of Kentucky

May 4, 1928

As Modified on Denial of Rehearing, Oct. 5, 1928.

Appeal from Circuit Court, Harlan County.

Action by William Morgan's administrator against the Louisville & Nashville Railroad Company. Judgment for plaintiff, and defendant appeals. Reversed, with directions.

Woodward Warfield & Hobson and Ashby M. Warren, all of Louisville, J C. Baker and John C. Adkins, both of Harlan, and Low &amp Bryant, of Pineville, for appellant.

O'Rear, Fowler & Wallace, of Frankfort, and B. B. Golden, of Pineville, for appellee.

THOMAS J.

William Morgan was accidentally killed on April 11, 1925, while in the employ of appellant and defendant below, Louisville & Nashville Railroad Company, and in which employment he had been engaged for about three months as a member of what is called in the record a "powder or blasting crew." It consisted of three persons, viz., decedent, plaintiff, his father, and one Aaron Napier, the latter being foreman thereof. For a month or six weeks the crew was exclusively engaged in blasting rock to make room for the construction of a second or double track of defendant's railroad at a point in Harlan county, and deceased was killed by a flying rock striking him on the head as a result of an explosion. His father, the appellant and plaintiff below, qualified as his administrator and brought this action against defendant in Harlan county to recover damages for his son's death, which the petition as amended averred was brought about by the negligence of defendant in these particulars: (1) Failure to furnish decedent a reasonably safe place, safe implements and appliances in and with which to perform his work; (2) failure to adopt and promulgate reasonable methods and rules for carrying on the work; and (3) excessive amount of explosives used in making the particular blast that caused decedent's death. It was also averred that defendant was negligent in certain other specified particulars, but all of which were but parts of the general charge in the petition as to the unsafe place, tools, implements, etc., at which and with which deceased was required to perform his duties.

The answer was a denial with pleas of contributory negligence and assumption of risk. each of which was controverted, and upon trial the jury, under the instructions submitted to it by the court, returned a verdict in favor of plaintiff for the sum of $10,000, which the court declined to set aside on defendant's motion for a new trial, and from the judgment rendered thereon it prosecutes this appeal.

Neither our statute relating to liability of carriers engaged in intrastate commerce for negligent injuries to their servants (sections 820b1, 820b2, and 820b3 of our present statutes), nor the Federal Employers' Liability Act (45 USCA §§ 51-59; U.S. Comp. St. §§ 8657-8665), applying to carriers engaged in interstate commerce, withhold the defense of assumption of risk, except in cases where the negligence consisted in failing to observe some statutory requirement enacted for the safety of employees of such carriers; nor is the defense of contributory negligence, or assumption of risk, withheld from defendant in actions under either the state or the federal statute, unless defendant and its injured servant were engaged in commerce either intrastate or interstate, as was pointed out in the case of Idol v. L. & N. R. R. Co., 203 Ky. 81, 261 S.W. 878.

On page 810, § 467, vol. 1, of Roberts on Federal Liability of Carriers, the text says that an employee of a carrier who is engaged in original construction work (as distinguished from repair work, although the latter may consist in substantial physical additions to old or prior instrumentalities used in commerce) is not engaged in commerce, nor are its servants employed therein so engaged so as to deprive the carrier of the common-law defenses of contributory negligence, or assumption of risk, or any other defense withheld by employers' liability statutes either federal or state. Many cases are referred to in that text wherein it was held that original construction work, as distinguished from repair work of the character indicated, came under neither the federal nor the state statute, if any upon the subject, and that in actions for injuries sustained by the servant so engaged all common-law defenses are available. See, also, the Idol Case, supra; Young v. Norfolk & Western Railroad Co., 171 Ky. 510, 188 S.W. 621, and Thompson v. C., N. O. & T. P. Ry. Co., 165 Ky. 256, 176 S.W. 1006, Ann. Cas. 1917A, 1266. Under those authorities it is quite clear that neither the defendant nor the deceased at the time he was killed was engaged in either interstate or intrastate commerce, and that the two affirmative defenses relied on herein were available to defendant, and which does not seem to be questioned by learned counsel for plaintiff-and which brings us to a consideration of the case on its merits.

The particular task in hand at the time of the accident was the blasting of a sheaf of rock from the foot of a hill or mountain for a distance of about 80 feet and of a thickness of from about 10 to 15 feet. On the day before the explosion another crew, whose duty it was to do so, had bored 8 holes along the line of the far side of the sheaf to be blown away, and they were 8 feet apart and of a depth of from 10 to 20 feet. The process employed was to "spring" those holes before putting in the explosive for the final blast, and it was done by exploding a small amount of powder or dynamite in each hole so as to enlarge it to the capacity of receiving the necessary amount of explosives to throw away the sheaf. On the morning of the explosion Napier and the deceased put into each hole the explosive for the final blast as they had theretofore done in similar undertakings. Before that was done, however, one Wade, who had the general superintendency of the entire construction work, had disputed with Napier as to the necessary quantity of explosive that should be put into at least some of the holes; but the evidence, at most, shows only a difference in judgment between Wade and Napier as to the required quantity. However, the latter testified, without contradiction, that he did not follow Wade's advice, although he possibly slightly increased the quantity of explosive in some of the holes above what he thought was necessary, but it is extremely doubtful if such slight increase of explosives in such holes materially or otherwise increased the hazard or danger to those engaged in the work-a matter which we will hereafter refer to.

The explosion was effected by means of an electric battery with a wire running from it to the nearest hole containing the explosives, and which latter hole was connected with all of the other loaded ones. The wire used in this case was about 200 feet long and ran away from the connected hole longitudinally and in practically a straight line, and at that distance it connected with the battery, the working of the lever of which produced the explosion. It was a part of the duties of decedent and his father to connect that wire with the nearest hole and to carry it back to the battery, and they were most generally assisted in that work by Napier. At the beginning of that process which in the record is called "stretching the wire" signals were given so as to warn surrounding people engaged in other construction work that a blast was about to be made, and that was done on this occasion some three or four minutes before the explosion. The evidence as to what occurred on this particular occasion was, in substance, that when deceased and his father got to the end of the wire at the battery Napier came up and connected it with the battery, and then cried out in a loud voice, "Fire!" two or three times, and then pulled the lever and the explosion occurred. It was also uncontradictedly proven that just before that was done deceased took his position and was standing on the end of a cross-tie of the old railroad track some 6 or 10 feet immediately behind Napier, and his father was close by, and the latter said to him: "Look out, Bill! Watch!" To which the deceased said, "You look out." And Napier said in his testimony: "That is when I hollered 'Fire!' and raised the throttle of the battery to pull it and shove it back."

It was shown without contradiction that neither the deceased nor his father had any duties to perform for defendant at the place where they stood when the explosion was made, nor were they required by the terms of their employment to stand there. It is true that plaintiff stated that...