McCalley's Adm'r v. Chesapeake & O. Ry. Co.

• Decision Date: 08 March 1916
• Citation: 169 Ky. 47,183 S.W. 234
• Parties: MCCALLEY'S ADM'R v. CHESAPEAKE & O. RY. CO.
• Court: Kentucky Court of Appeals

183 S.W. 234

169 Ky. 47

MCCALLEY'S ADM'R v. CHESAPEAKE & O. RY. CO.

Court of Appeals of Kentucky.

March 8, 1916

Appeal from Circuit Court, Lewis County.

Action by Hazel D. McCalley's administrator against the Chesapeake & Ohio Railway Company. Judgment for defendant and plaintiff appeals. Reversed and remanded.

Allan D. Cole, of Maysville, and S. J. Pugh and U. C. Thoroughman both of Vanceburg, for appellant.

Worthington Cochran, & Browning, of Maysville, for appellee.

HURT J.

Hazel D. McCalley, who was a man of about 50 years of age, and had been engaged for 15 or 20 years of his life in the service of the appellee, Chesapeake & Ohio Railway Company, was in June 1913, in the employment of the appellee, and his duties were to remove the ashes and cinders from the railroad track near a pumping station at Garrison, in Lewis county. At this pumping station there were two tracks, and a water tank was situated upon each of the tracks at which the trains passing over the road stopped to obtain water, and at the same places the furnaces of the engines would be cleaned out and the ashes and cinders dropped upon the track. The duties of decedent were to keep the ashes and cinders shoveled from the track, because, if they were allowed to accumulate, they would affect the wires by which the signal block system was operated upon the road, and would cause the blocks to assume a position which indicated that a passing train should stop. One of the tracks at this point was used by the trains going east, and the other was used by the trains going west. Near this point there was a private crossing of the railroad tracks. A freight train had just passed, going toward the east, and was standing upon the track a short distance away. A considerable quantity of ashes and cinders had been dropped upon the westbound track by some passing train, a quantity, which was sufficient to require from 15 to 25 minutes to be removed with a shovel. The decedent observed this, and took his shovel and went upon the west-bound track, and when last seen by any one, which was less than 10 minutes before he was killed, he was engaged in shoveling off the cinders from the track, with his face turned toward the west. At that time an accommodation train approached the pumping station from the east and going west at the rate of from 40 to 50 miles an hour, and struck the decedent from the rear, knocking him about 66 feet, and instantly causing his death. When picked up, his neck was broken, his back was bruised, and very soon became discolored, one of his legs was cut nearly off from the back side, and the ankle of the other leg was cut through to the bone from the rear. The train was stopped about 1,000 feet from the point where it came in contact with the decedent. No signal was given of the approach of the train to the place where decedent was at work, except that on the east side of a bridge near by, upon the track, the train signaled for the station at Garrison, which was situated between a quarter and one-half mile west of the pumping station. The track over which the train approached was substantially straight for a considerable distance before arriving at the point where it struck and killed the decedent, and one in the engine could see decedent at his work in shoveling the ashes for about 2,000 feet before arriving at the point where he was. The death of decedent occurred between 3 and 4 o'clock in the afternoon.

The administrator of the decedent brought this suit under the federal Employers' Liability Act April 22, 1908, c. 149, 35 Stat. 65 (U. S. Comp. St. 1913, §§ 8657-8665) to recover the damages to his estate alleged to have arisen from his death, and relied in his petition upon a general allegation of negligence on the part of the employés of the railroad, which he alleged was the cause of decedent's death. The appellee, by answer, traversed the negligence alleged in the petition, and as a defense in addition thereto pleaded that the decedent was also negligent, and his negligence was the cause of his death.

At the conclusion of the evidence offered and heard for the appellant, the appellee moved the court to peremptorily instruct the jury to find a verdict for it. The court sustained this motion, and under the direction of the court the jury returned a verdict for the appellee, and a judgment was rendered dismissing the petition. The appellant's motion and grounds for a new trial being overruled, it seeks a reversal of the judgment upon the ground that the court was in error in sustaining the motion for a directed verdict for appellee.

It is conceded that the appellant can maintain the action under the provisions of the federal Employers' Liability Act, if it can be maintained at all, and also that, if appellee owed the decedent the duty of taking precautions for his safety, as warning him by proper signals of the approach of the train and maintaining an adequate lookout for him, that the evidence was sufficient to take the case to the jury. The evidence fails to disclose that the ones operating the trains saw the peril of decedent in time, by the exercise of ordinary care, to have averted the injury to him, but it tends to prove that, if the engineer had kept a lookout, and used ordinary care to have seen him, his presence upon the track would have been discovered in time to have prevented injury to him, by warning him of the approach of the train by blasts upon the whistle, or by checking the speed of the train, or, if need had been, to have stopped the train. The decedent was not a trespasser nor a mere licensee, but was upon the track in the performance of the very duty for which he was employed by the appellee, and which duty could not be performed without his going upon the track and remaining there while shoveling off the cinders and ashes. The pile of ashes and cinders, according to the evidence, was sufficient in quantity to have engaged him for from 15 to 25 minutes in its removal. When seen less than 10 minutes before his death, he was shoveling off the ashes and cinders, with his back toward the direction from which the train came which caused his death. After his death it was found that before he was struck by the train he had removed all but a small quantity of the cinders and ashes. The wounds upon the body show that he was taken in the rear by the train, and the fact that his body was hurled over 60 feet and against a fence would indicate that he was struck with considerable violence. From these facts it can also be inferred that he was intently engaged at his work, and had no knowledge of the approach of the train. All of the witnesses, except one,...