McGaughey v. Hines

• Decision Date: 16 December 1921
• Citation: 235 S.W. 742,193 Ky. 312
• Parties: MCGAUGHEY v. HINES, DIRECTOR GENERAL OF RAILROADS.
• Court: Kentucky Court of Appeals

235 S.W. 742

193 Ky. 312

MCGAUGHEY v. HINES, DIRECTOR GENERAL OF RAILROADS.

Court of Appeals of Kentucky.

December 16, 1921

Appeal from Circuit Court, Anderson County.

Action by Everett McGaughey against Walker D. Hines, Director General of Railroads. Judgment of dismissal, and plaintiff appeals. Affirmed.

L. H Carter and Stanley Trent, both of Lawrenceburg, and Edwards Ogden & Peak, of Louisville, for appellant.

Humphrey Crawford & Middleton, of Louisville, and Willis, Todd & Bond of Shelbyville, for appellee.

SAMPSON J.

The judgment dismissing appellant McGaughey's petition was entered on a directed verdict in favor of the Director General of Railroads, on his motion made at the conclusion of all the evidence. McGaughey appeals.

It may be conceded that appellant was engaged in interstate commerce at the time of his injury for he was a section hand assisting in repairing the main track of the Southern Railway in Kentucky, an interstate system of railroad lines extending into and through many states, including Kentucky. He and another man were unloading cross-ties from a flat push car on the track; on the car were some 15 or 20 ordinary cross-ties, which, being laid crosswise, extended over the edge of the flat car about 18 inches on either side. The ties were of oak and of the usual dimensions. The section gang were removing old ties from the roadbed and putting new ones in their places. The foreman went in front and marked the ties in the track to be removed, and appellant, McGaughey, and his buddy were directed to and were engaged in dropping new ties from the push car at every place marked by the foreman. His buddy would push a tie across the car toward the appellant, and appellant would then pull it over the car and drop it to the ground. At the time of appellant's injury the tie had been pushed to the side of the car next to appellant before appellant took hold of it. The end of the tie extended about 3 feet over the edge of the car next to appellant. The other end of the tie was on top of the car, and appellant's buddy had turned away from the tie to get another tie. When appellant took hold of the tie, to pull it off of the car, it was unattached, loose, and no other person was touching it. In and on the end of the tie next to appellant was a sun crack or splinter, which projected slightly from the side of the tie. This splinter caught in the overall jacket of appellant, McGaughey, when he undertook to drag the tie from the car, and when he dropped the tie, or as he was pulling it off the car, he was caused to and did fall backward down the grade slope onto a pile of bridge timbers, fracturing his hip bone and otherwise injuring him, for which he brings this action to recover damages.

The motion of the defendant for a peremptory instruction in his favor as Director General of Railroads, made at the conclusion of all the evidence, was but a demurrer to the evidence, challenging the sufficiency thereof to entitle plaintiff, McGaughey, to have his cause submitted to the jury. We think the trial court properly sustained that motion, for appellant admits that he had been engaged as a section hand, handling cross-ties and doing track work for a number of years, and that he saw, or by the exercise of reasonable care could have seen, the splinter or sun crack in the end of the...