McKee v. Cincinnati, F. & S.E.R.R.

• Decision Date: 24 January 1913
• Parties: McKEE v. CINCINNATI, F. & S.E. R. R.
• Court: Kentucky Court of Appeals

152 S.W. 759

151 Ky. 698

McKEE v. CINCINNATI, F. & S.E. R. R.

Court of Appeals of Kentucky.

January 24, 1913

Appeal from Circuit Court, Fleming County.

Action by Sam McKee against the Cincinnati, Flemingsburg &amp Southeastern Railroad. Judgment for defendant, and plaintiff appeals. Reversed and remanded.

J. H Power and Paul Heflin, both of Flemingsburg, and Scott &amp Hamilton, of Frankfort, for appellant.

Jno. P McCartney, of Flemingsburg, for appellee.

TURNER J.

Appellant in September, 1910, was injured at Flemingsburg by the backing in of an engine onto a side track and against some freight cars, between two of which he was at the time coupling the air brakes. He was 43 or 44 years of age, and had been an employé of the company for some 12 or 13 years in various capacities, and acted in almost any subordinate capacity when called on. He was not the regular fireman on appellee's train, but the day of his injury, by reason of illness or absence of the regular fireman, was acting in that capacity on the train which runs from Flemingsburg to Johnson Junction. He had gone as fireman on the morning run from Flemingsburg to Johnson and return, and the train was making up or switching preparatory to taking the afternoon run; the train leaving at 12:40 or 12:45 p. m.

Upon the trial of the case in the lower court, a peremptory instruction was given to find for the defendant upon the close of the plaintiff's testimony, and the correctness of that ruling is the only thing necessary to consider on this appeal. The petition alleges, in substance, that, while they were switching preparatory to the afternoon run, Dudley, the superintendent of defendant company, directed the plaintiff to go between two freight cars that were standing on the switch and couple the hose on the air brakes, and that, in order to carry out that order, it was necessary for him to go in between the cars and stoop over so as to reach the coupling of said hose; that at the time there were several cars on the side track placed in such position as to prevent his seeing the engine and cars which were switching on the main track; and that, at the time he went in between the cars, the engine and cars on the main track were going away from him and not coming in the direction of the switch where he was coupling the hose, and that he did not and could not see the engine and cars on the main track while he was engaged in attaching the hose in accordance with said order. That Dudley, the superintendent, was standing at some distance from said cars along the main track of defendant's road, and saw, or by reasonable diligence could have seen, the engine and cars on the main track, which were then being operated by the engineer, and which, while plaintiff was coupling the air brakes, without the knowledge of plaintiff, began to run back in the direction of plaintiff, and that Dudley was in a position to warn plaintiff of his danger while he was engaged in obeying the order, but did not do so. The answer of the defendant admits that Dudley, the superintendent, ordered the plaintiff to couple the air brakes on the cars, but denies that plaintiff did so; and further admits that Dudley was in a position to see, and did see, the engineer running said train onto said switch, and could have signaled to the engineer to stop said train, but denies that he knew that the plaintiff was between the cars.

The defendant pleaded contributory negligence and that appellant assumed the risk usually incident to his employment. Appellant on the trial testified, in substance, that he was given the order by Dudley to couple the air brakes; that the engine was up in the depot or in that direction on the...