Luton Min. Co. v. Louisville & N.R. Co.

• Court: Court of Appeals of Kentucky
• Writing for the Court: FULTON, Justice.
• Citation: 123 S.W.2d 1055,276 Ky. 321
• Decision Date: 16 December 1938
• Parties: LUTON MINING CO. v. LOUISVILLE & N. R. CO.

123 S.W.2d 1055

276 Ky. 321

LUTON MINING CO.
v.
LOUISVILLE & N. R. CO.

Court of Appeals of Kentucky

December 16, 1938

Appeal from Circuit Court, Webster County.

Action by the Louisville & Nashville Railroad Company against the Luton Mining Company to recover a sum of money paid in compromising a claim for the death of a brakeman employed by plaintiff. From a judgment for plaintiff, defendant appeals.

Affirmed. [123 S.W.2d 1057]

Gordon, Gordon & Moore, Abner Johnston, Jr., and E. M. Nichols, all of Madisonville, for appellant.

Withers & Lisman, of Dixon, and J. P. Hamilton, J. Miller White, Ashby M. Warren, and H. T. Lively, all of Louisville, for appellee.

FULTON, Justice.

The trial judge in this case handed down a written opinion containing a finding of law and facts. The facts as contained in this finding appear to us to be so correctly, aptly and concisely stated that we have determined to adopt his finding as the statement of facts for the purpose of this opinion. It is as follows:

"1 About the year 1918, the defendant, Luton Mining Company made a contract with the Director General of Railroads, and the Louisville & Nashville Railroad Company, for the construction of a switch yard and connection at the coal mine of the defendant, Luton Mining Company, on the plaintiff's Morganfield branch. This contract contained a provision that the mining company would hold harmless the Director General and the railroad company from claims and demands arising directly or indirectly out of the maintenance of said tracks or the operation of rolling stock thereon

"2. Said track and connection consisted of a railroad switch or turn-out indicated by blueprint accompanying the contract. According to this blueprint, a set-out track parallel to the main line was built upon the railroad company's right-of-way turning off of the switch, and about 550 feet east of the main line, the switch was divided into two tracks passing by the mine tipple and re-uniting beyond it.

"3. In the year 1926, the mining company, because of a fault in the roof of their mine or a break in the seam of coal which it was operating, moved its entry across its switch tracks and a distance of some 350 feet east of the old site in order to enable it to continue working that seam, which made necessary a rebuilding of its switch tracks in order to bring them to and under the new tipple. This new yard extended perhaps 1,000 feet further east than the old yard and none of the new tracks perhaps were on the same line of the old tracks at or near the tipple, but were within a distance of 15 or 20 feet from where the old tracks were located.

"4. About the time this change was made by the mining company the proposition of a new contract was taken up between the mining company and the railroad company, which contract was in all respects similar to the contract under which they had been operating but the president of the mining company wrote the railroad company that inasmuch as the track had already been built and the mining company had paid all of the expenses of building it that he did not consider that a new contract was necessary. From the evidence it does not appear whether the railroad company was consulted about these changes or whether its consent was ever given thereto, but it does appear they were made to suit the convenience and the necessities of the mining company and made by it at its own expense.

"5. In June of 1931, M. E. Jagoe, a brakeman employed by the plaintiff as a member of the crew of one of its trains which usually worked this switch yard, was injured by being run over by a moving coal car, which injury happened at an unblocked switch frog. From the evidence it appears that this switch frog was not located closer than 15 or 20 feet to the line where any of the old tracks were located. It also appears that there are more switch frogs in the new yard than there were in the old, for the reason that there are more switch tracks in the new yard than there were in the old. At the time of the accident to Jagoe all of the frogs in this yard were blocked except the one where Jagoe was injured. It appears from the evidence [123 S.W.2d 1058] that the train crew was engaged in working this switch for the purpose of removing certain loaded cars therefrom which were consigned to points in Indiana and Tennessee and in placing empty cars to be loaded when the mines should again operate. They were moving a cut of loaded cars coupled together which were being pushed by the engine which was at the end of the track nearest the main line and in a direction away from the main line. It appears from the evidence that some of the brakes were set on this cut of cars and that Jagoe was attempting to loosen the brake on one of these cars when his foot was caught in the unblocked switch frog and so held that he could not free himself until the car ran over and along his leg injuring it to such an extent that it had to be amputated and that he thereafter died. It appears that he was using a stick or a pole some 5 feet in length in an effort to pry loose a lever or pawl which was holding the brake on that especial car set. The rules of a railroad company require a brakeman to mount the car and release the brake and lever by hand. There was also evidence that this stick had been lying about the yard for some time and had been used by other brakemen on other occasions for the purposes for which Jagoe was using it. The rules of the railroad company prohibited employees from going between moving cars. The evidence discloses that he was walking on the track between two cars which were in motion at the time his foot was caught in this unblocked frog and that the cars were moving at that time about two miles an hour or at about the gait a man would walk.

"6. After Jagoe was injured the railroad company's claim agent investigated the accident and took the statements of a number of witnesses. The railroad company then took the matter up with the mining company, both by letter and by its claim agent and the mining company through its president denied liability on the grounds that Jagoe was contributorily negligent and in a place where he had no right to be, and denies liability either under the contract or otherwise.

"Mr. Jagoe's widow as administratrix, through her attorneys, began negotiations with the railroad company looking toward a settlement of the claim she was making against the railroad company for her husband's death. These negotiations and those between the two companies seem to have been going on concurrently and the railroad company called upon the mining company to co-operate in the matter of settlement which, as above indicated, it declined to do. The claim was then settled by the railroad company by a compromise, by which the administratrix was paid $5,680.00."

Pursuant to the finding of facts, the trial court found as a matter of law that appellant was liable to appellee for the amount so paid in compromising this claim and judgment was rendered in favor of appellee against appellant for $5,680; from that judgment this appeal is prosecuted. Appellant contends (1) that the lower court erred in overruling its demurrer to the petition; (2) that the alleged contract was without consideration and unilateral; that it was also discriminatory against it and was obtained by coercion on the part of the Director General of Railroads; (3) that there was no liability on the part of appellee to Jagoe's administratrix under the facts of the case and therefore no liability on the part of appellant to appellee; that the railroad company was a volunteer in making this settlement and that the settlement was not made in good faith. We will discuss these propositions in order.

1. Appellant argues vehemently that the petition did not state a cause of action against it by reason of the failure of the petition to allege that the switch track covered by the contract between it and appellant was ever built pursuant to this contract. This...