Meyers' Admrx. v. C. & O. R. Co.

• Decision Date: 14 March 1924
• Citation: 202 Ky. 443
• Parties: Meyers' Administratrix v. C. & O. Railway Company.
• Court: Kentucky Court of Appeals

202 Ky. 443

Meyers' Administratrix v. C. & O. Railway Company.

Court of Appeals of Kentucky.

Decided March 14, 1924.

Appeal from Kenton Circuit Court (Common Law and Equity Division).

JOHN T. MURPHY and O. M. ROGERS for appellant.

MAURICE L. GALVIN and JOHN L. RICH for appellee.

OPINION OF THE COURT BY CHIEF JUSTICE SAMPSON — Affirming.

Appellant, who was plaintiff below, seeks by this action to recover damages for the death of her husband caused, as it is averred in the petition, through the negligence of the C. & O. Railway Company while it and he, as its employe, were engaged in interstate commerce. The action was brought under and pursuant to the federal employers' liability act. The accident which resulted in the death of Frank Meyers, a railroad engineer, happened in the C. & O. yards on July 11, 1920, which yards are located between Third and Fourth streets and Smith and John streets in the city of Cincinnati, and are elevated, being supported by trestles some twenty-five or thirty feet in height. The deceased, Meyers, was an experienced railroad engineer, having been in the employ of the appellee company running its engines for many years. He and his crew were in charge of a switch engine which moved the cars about in the yards near the freight depot in the block to which we have referred. It appears from the evidence that most of the cars that came into that yard were unloaded at the depot and that at very infrequent times cars were loaded out from that depot.

In March before the accident in July the company issued a bulletin respecting the tracks in the yards which read as follows:

                                        "Covington, Ky., March 24, 1920
                                         "NOTICE
                

"ALL CONCERNED:

"Tracks 6 and 7 at Fourth street freight house are O. K. for engine to go back to bumping block.

"Tracks 4, 5, and 8 are not safe for engine to go further than the iron work of the bridge.

                                            "W. J. Neal
                                    Terminal and train master."
                

This bulletin was posted at various places including the Covington roundhouse and at the depot in the yards. In order that there might be no question about whether the engineers operating over the tracks mentioned in the bulletin knew of its contents, they were each required to sign their names to it. Accompanying the record is a photograph of this notice and bulletin with the signature of Meyers and others. It is admitted by appellant that the deceased Meyers signed this bulletin, in acknowledgment of his knowledge of its contents.

While the deceased was on the engine with his fireman moving it over track No. 5, beyond the bridge it fell through the trestle to the street and instantly killed Meyers. At the conclusion of all the evidence the court on motion of the defendant directed the jury to find and return a verdict for the company, which was done, judgment being entered in accordance therewith. Of this ruling the administratrix complains and now prosecutes this appeal to reverse the judgment.

There are two outstanding questions in this case, the determination of which is conclusive of the rights of the parties: (1) was the deceased and his crew engaged in interstate commerce at the time of the accident which brought about the death of Meyers? (2) Was the disobedience of the rule by Meyers, promulgated by the notice the bulletin contained, above copied, thus bringing about his death, such negligence or misconduct as to bar a recovery by his administratrix?

1. In order to determine these questions correctly we will briefly state the evidence: There were two cars off the track in the yards, one upon track No. 4, some distance beyond the steel bridge, and the other on the house track, next to the depot. Before the car on track No. 4 could be moved it was necessary to put it back on the rails. For this purpose the company used a tool called a retracker. It was rather heavy but could be handled by two or more men. When it was placed in proper position on the track the engine would pull the cars back on the track. This retracker was used in putting the car back on the track on track 4, and was left there. In putting this car back, which was quite a distance beyond the steel bridge, the engine was not allowed to pass beyond the bridge. To avoid this they picked up several cars which were much lighter than the engine, and placed them in front of the engine, sent them over track No. 4 and connected them to the car which was off the track, and when thus connected, started the engine and pulled the car back on the track by means of the retracker. It will thus be seen that in retracking the car, engineer Meyers and his fireman carefully observed the bulletin forbidding the engine to go beyond the steel bridge. After doing some other work with the engine the crew was sent to undertake the work of retracking the car on the house track and of course needed the retracker. This tool was heavy and unhandy to carry. To accommodate the men who were working on the yard the engine, with the deceased in charge, started down on track No. 5 beside track No. 4 for the purpose of picking up the retracker and carrying it back up to where it was needed for use in rerailing the car. Before the engine started on track No. 5 the engineer, who had his lunch with him, left the throttle and turned it over to the fireman and went to the other side of the engine cab and began to eat his lunch. The fireman was operating the engine according to signals and instructions. As he came up to the bridge he enquired of the engineer if he should stop there, and getting, as he thought, a negative response but having in mind the bulletin, he brought the engine to a full stop at the bridge. The engineer directed him to go on. These facts are set forth in the evidence of the fireman, stating, "Mr. Meyers (deceased) was eating his lunch; he gave me a signal to go ahead. I said I did not see anybody; he said, go ahead. I said we have no business off that steel work. He said Creighton said the carpenters had finished, to go any place we wanted to. He gave me the signal, and I drove the engine cautiously down in there." Further testifying the witness said: "He (Meyers) said I had a talk with Creighton and he said it was all right; he said go anywhere they wanted you to. They want the retracker." "Q. You relied upon the statement? A. Yes sir."

After they had gone down upon track No. 5 for the purpose of getting the retracker, and after it had been loaded and while the deceased was either getting on or off the engine, it fell through the trestle and so injured Meyers that he immediately died.

According to the undisputed evidence the engineer was not authorized to take his engine down on track No. 5 at the time of the accident. The brakeman testifying concerning the matters, stated: "Q. What did you go in 5 for? A. For the retracker. Q. Did you have any work in there — any cars in there that you went in there for? A. No, sir. Q. Did you place any cars in there at that time? A. No. Q. It was simply the business of picking up the retracker? A. Yes, sir. Q. Whose business was it to get the retracker and put it on the engine? A. It was the helper's business and the foreman also. Q. That was not a part of the engineer's or fireman's duty? A. No, sir."

Another witness, conductor Jones, testified: "Q. After the derailed car on track No. 4 was retracked what, if anything, did you have to do again in track 4 that night? A. Nothing at all. Q. Your work was completed? A. Yes, sir. . . . Q. Was there any work to be done by your crew in the movement of cars of any kind on track No. 5 after you directed Mr. Hukill to go get the block, press the button? A. None whatever. Q. What business, if any, did that engine operated by Mr. Meyers have in on track 5, if you know? A. It had no business at all. Q. Do you know how the retracker was gotten back at the end of track 4 where you retracked that car? A. They were carried back there. . . . Q. The only purpose of going in there (on track 5) was what? A. To reload the retracker; put them back on the engine. The retrackers we had used in retracking the car on track 4."

It will thus be seen that there were no more cars to be moved on tracks 5 or 4 on that day, and that the sole and only business which the engine had upon track 5 at the time of the accident was to accommodate the helpers in transferring the retracker from one end of the yards to the other — the same yards. Certainly that was not interstate commerce. It had no relation to interstate commerce. Even though the engine had moved cars that day in interstate commerce that work had been completed and it was then engaged solely in the work of transferring the retracker from one place in the yards to another.

As this was not interstate commerce the deceased Meyers was not engaged in interstate commerce at the time of the accident which brought about his death and his administratrix could not maintain an action for damages under the employer's...