Moore v. Cincinnati, N. O. & T. P. R. Co.

• Decision Date: 13 October 1923
• Citation: 256 S.W. 876
• Parties: MOORE et al. v. CINCINNATI, N. O. & T. P. RY. CO.
• Court: Tennessee Supreme Court

256 S.W. 876

MOORE et al. v. CINCINNATI, N. O. & T. P. RY. CO.

Supreme Court of Tennessee.

October 13, 1923.

Rehearing Denied December 15, 1923.

Appeal from Circuit Court, Morgan County; J. H. S. Morison, Judge.

Action under the Workmen's Compensation Act by Ella Moore and others against Cincinnati, New Orleans & Texas Pacific Railroad Company. From a judgment dismissing plaintiff's petition, plaintiffs appeal. Reversed and remanded.

W. Y. Boswell, of Oakdale, for Ella Moore and others.

H. M. Carr, of Harriman, for Cincinnati, N. O. & T. P. Ry. Co.

CHAMBLISS, J.

This is an action brought in the circuit court of Morgan county under the Workmen's Compensation Act (Pub. Laws 1919, c. 123) for the death of the deceased husband and father of plaintiff, who was an employee of the defendant. The court below dismissed the petition, and the plaintiffs have appealed.

It appears that Moore, the deceased, was and had been for some years employed as a laborer in and about that portion of the premises of the defendant known as the repair yard located along the east bank of Emory river at Oakdale; the tracks of this repair yard, running north and south, lying west of the more actively used tracks of the switch yard of the defendant, which extended parallel and being some six or eight in number, including two main line tracks. East of these yards was a dirt road leading northwardly to the home of the deceased, some three-quarters of a mile distant. It was the custom, and had been for years, for the men working in the car repair section of the yards at Oakdale to pass over the intervening tracks on the east at whatever point happened to be most convenient to them; no specified or prepared way having been provided. It appears that a path, more or less obstructed, ran along the riverside and west of the tracks extending north, which could be and was at times used as a way of approach to the repair yard by some of the men working about and on these repair tracks who lived northwardly, and by using this pathway paralleling the tracks and making their way over and around the obstructions therein it was possible to get to and from the homes of these men living on the east side without crossing other than the two main line tracks, thus to some extent reducing the danger incident to crossing the yards. It further appears that the deceased not only worked as a laborer on and about the tracks located on the west side of the yards and known as the repair tracks, but he was from time to time engaged in cleaning up the tracks in the switch yard proper to the east of the repair tracks and over which it was his custom, and that of his fellow workmen, to pass to and from their work.

On the day of the accident the deceased, with two companion workmen, upon the blowing of the 3:30 p. m. signal whistle, started home, and walked northwardly along the repair tracks until they reached the stockhouse, which blocked their course, and they then turned east and climbed by an established path up a cinder bank, a few feet in height, which seems to have divided the two sections of the Oakdale freight yards; and then, instead of turning north again, as they might possibly have done, and following the obstructed path, already described, they continued east across the switch yards in a direction leading toward a point on the east side of the yard where a pathway is located leading up a bank from the switch yards into the dirt road running northwardly toward the home of the deceased. Having crossed two or more of the switch tracks, they found their way blocked by a cut of freight cars standing upon one of the tracks, as commonly happened, and one of the men with the deceased climbed over the coupling between two of the cars, while the deceased and another companion climbed under. At this moment the cars were kicked violently by a yard locomotive some distance away down the track, and the deceased was killed. There is evidence that one or both of Moore's two companion workmen, after starting across the yard on their way home, planned to catch a passing freight train and ride north thereon in the direction of their homes, located some distance beyond Moore's home, and were hastening across the tracks for this purpose; but it is not established other than by inference that Moore was a party to this plan.

It is insisted for the railroad company that the injury did not arise out of and in the course of the employment of the deceased; also, that the injury was due to the employee's willful misconduct in choosing a more hazardous way than necessary; and, further, that he was at the time of the injury contemplating and proceeding to perform the unlawful act of swinging a moving train.

With respect to the last-mentioned insistence, it is only necessary to say that the evidence does not sufficiently establish, as already indicated, the fact that Moore's movements on this occasion, either the direction he was following or fatal crossing between the cars he attempted, were...