Martin v. Louisville & N.R. Co.

• Decision Date: 31 May 1894
• Citation: 26 S.W. 801,95 Ky. 612
• Parties: MARTIN v. LOUISVILLE & N. R. Co. et al.
• Court: Kentucky Court of Appeals

26 S.W. 801

95 Ky. 612

MARTIN v. LOUISVILLE & N. R. Co. et al.

Court of Appeals of Kentucky.

May 31, 1894

Appeal from circuit court, Kenton county.

"To be officially reported."

Action by R. N. Martin, administrator of the estate of James Smart against the Louisville & Nashville Railroad Company and others for wrongfully causing the death of his intestate. From a judgment for defendants, plaintiff appeals. Affirmed as to the Louisville & Nashville road, and as to all other defendants reversed.

Wm Goebel, for appellant.

J. W Bryan, for appellee Louisville & N. R. Co.

Hallam & Myers and W. H. Jackson, for other appellees.

HAZELRIGG J.

The appellant's intestate, James Smart, was fatally injured while in the discharge of his duties as switchman in the yard of the appellee the Louisville & Nashville Railroad Company at Central Covington. By his petition the appellant seeks to recover damages for the death of Smart because of the gross and wanton negligence of all of the appellees. By separate answers the material averments of the petition were denied and contributory negligence on the part of Smart pleaded. Upon the conclusion of the plaintiff's testimony the court peremptorily instructed the jury to find for the appellees, and this appeal questions the correctness of that instruction. The proof conduces to show that on the night of September 14, 1892, Smart, as switchman in the service of the Louisville & Nashville road, was engaged, with other employes of that road, in making up trains-switching, etc.-in the company's yard, and had made a coupling on track No. 2 of the Louisville & Nashville as shown in the following drawing:

(Image Omitted)

He then signaled with his lantern to the engineer in charge to move forward, and immediately climbed on a ladder on the side of the moving box car, to ride to a point further north, where other work awaited the crew. At a few minutes before this-not exceeding 10-the appellee Robinson, in charge of a Chesapeake & Ohio train, which had been loaded with freight in Cincinnati, to be delivered to the Louisville & Nashville people in their Covington yard, brought some 25 cars into the yard, and "kicked" them in on track No. 1, which, though in the Louisville & Nashville yard, was reserved and kept clear for the use of the Chesapeake & Ohio road. Robinson then detached his locomotive, and with it quit the yard. He left the "dead" cars, however, on track No. 1, in such close proximity to track No. 2 that the side or corner of the standing or "dead" car next to the switch was within a few inches of the line of passing cars on the other track. The space left was not sufficient to admit of the safe passage of persons on the sides of cars running on track No. 2. The night was dark, and this dangerous proximity was not noticed by any of the crew on the Louisville & Nashville (or No. 2) track. Smart had ridden but a short distance, when he was knocked off, and fatally crushed.

The first question presenting itself (as it was upon the court's solution of this, we are told, that the peremptory instruction was based) is, was Smart guilty of such contributory negligence as, but for it, the injury would not have happened? Upon a similar state of case this court answered this question in the negative in the case of Railroad Co. v. Earl's Adm'r, 22 S.W. 607 and a like conclusion was reached by the Alabama supreme court in Railroad Co. v. Burton, 12 So. 88, and we adhere to that determination. It is a matter of common observation that railroad companies furnish cars of the class in use on the occasion under consideration supplied with ladders, or appliances similar to ladders, to enable employes to discharge promptly and efficiently the duties imposed on them. Among those duties is their rapid transit from one part of the yard to another. The most prudent and cautious employes use these ladders or steps for that purpose. That is what they are for, as well as for ascending and descending over the sides of the cars. As said in the Earl Case: "The custom of brakemen riding on the ladder from one point of work to another was clearly established. This was the well-known way of doing such work as...