N., C. & St. L. R. v. Henry

CourtCourt of Appeals of Kentucky
Writing for the CourtWilliam Rogers Clay
Citation158 Ky. 88
PartiesNashville, Chattanooga & St. Louis Railway v. Henry.
Decision Date18 March 1914
158 Ky. 88
Nashville, Chattanooga & St. Louis Railway
v.
Henry.
Court of Appeals of Kentucky.
Decided March 18, 1914.
Appeal from McCracken Circuit Court.

Page 89

WHEELER & HUGHES and CLAUDE WALLER for appellant.

S. A. ANDERSON, J. R. GROGAN and W. M. OLIVER for appellee.

OPINION OF THE COURT BY WILLIAM ROGERS CLAY, COMMISSIONER — Reversing.


In this action for damages for personal injuries against defendant, Nashville, Chattanooga & St. Louis Railway, plaintiff, Toy Henry, recovered a verdict and judgment of $12,000. Defendant appeals.

It is admitted that at the time of the accident defendant was engaged and plaintiff was employed in interstate commerce. The action is prosecuted under the Act of April 22, 1908 (35 Stat. L., 66, Chap. 149), as amended April 5, 1910 (36 Stat. L., 291, Chap. 143; U. S. Comp. Stat. Supp., 1911, p. 1324), relating to the liability of

Page 90

railroad common carriers engaged in interstate commerce to their employes while so employed, and is based upon a violation of the Safety Appliance Act of Congress. The Act provides:

"It shall be unlawful for any such common carrier (railroad engaged in interstate commerce) to haul or permit to be hauled or used on its line any car used in moving interstate traffic not equipped with couplers coupling automatically by impact, and which can be coupled without the necessity of men going between the ends of the cars."

Plaintiff was brakeman on defendant's train bound from Lexington, Tennessee, to Paducah, Kentucky. In the train were three cars which had been picked up at Paris, Tennessee, and brought to Murray, Kentucky. Two of these cars were loaded with coal, while the third was loaded with household goods. At the time of the accident these three cars were being switched by the engine on to the house track for the purpose of being unloaded. The switching operations were being carried on under the direction of plaintiff, and it was his duty to give the necessary signals. The two coal cars were both equipped with automatic couplers. The couplers are so constructed that they may be worked from the outside by lifting a lever attached to the end of the car. Connected with the lever is a chain, the other end of which is attached to the coupling pin. By lifting the lever the coupling pin is removed. The knuckles or couplers are thus opened and the cars uncoupled.

According to plaintiff's evidence, the engine was headed north. The cars were in its rear, and were being backed south on the house track in response to a signal from plaintiff. He stopped the train by signal, and attempted to uncouple the cars by the use of the pin lifter, which extended out to the corner of the car. There was only one pin lifter on the side of the train where he was working, the other pin lifter being on the opposite side of the other car. He tried the pin lifter two or three times. Thinking that he had succeeded in uncoupling the cars he signaled for the engine to go ahead. When he saw the cars were not uncoupled, he again signaled the engineer to stop. The engineer pulled to the south side of the crossing just a little, and stopped. Plaintiff went in between the cars to lift the pin on the opposite side of the head car. While in this position the train backed without any signal from him, and the wheels of the car

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ran over his left leg. His leg and knee were so crushed that amputation above the knee was necessary. Plaintiff also stated that at Paris, Tennessee, he had occasion to attempt to use the coupler which he first attempted to uncouple at Murray, and it failed to work there as it should. He further stated that when automatic couplers are in good condition there is no trouble in lifting the pin and uncoupling it by means of the pin lifter. On cross-examination witness stated that he might have gone around the end of the train and uncoupled on the other side, but this was not the customary way to do the work.

William Armstrong, who was present at the time of the accident, and who was about 30 feet distant from plaintiff, testified that he saw plaintiff give a signal with a downward motion of his hands. The train then stopped. He saw plaintiff go in between the cars, and while he was between the cars the train backed for a distance of about 15 feet. He then gave the alarm to the man on the engine. Cooper Armstrong testified that he was on the same side of the train as his brother, William Armstrong. He saw plaintiff go in between the cars and take hold of the lever. He then saw plaintiff give the stop signal and the train stopped. Plaintiff then went in between the cars, but he could not see what plaintiff was doing. While the plaintiff was between the cars the cars moved backward about 15 or 20 feet. After the accident the cars were together.

For the defendant the station agent, conductor and car inspector testified that they tested the coupler in question shortly after the accident, and it was free from defects, and in good workable condition. The head brakeman testified to the same effect. On cross-examination, however, the head brakeman testified that the train stopped some two or three times, and it was either on the second or third movement of the train that plaintiff was injured. The station agent also testified that he was present when the accident occurred, and that the train was moving when plaintiff went in between the cars for the purpose of uncoupling. Defendant also proved by two witnesses that the Messrs. Armstrong stated to them that the train was moving when plaintiff went in between the cars. This evidence was admitted for the purpose of impeachment only.

Defendant first insists that the verdict is flagrantly against the evidence. In this connection it is argued that on one side we have simply the statement of plaintiff that

Page 92

he tried the lever two or three times but it failed to work, while on the other side is the positive evidence of the station agent, conductor, head brakeman and car inspector, to the effect that the coupler was free from defects and in workable condition. It will be observed that the Act of...

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4 practice notes
  • Kimberling v. Wabash Ry. Co., No. 32531.
    • United States
    • United States State Supreme Court of Missouri
    • July 30, 1935
    ...Co. v. Cornett, 214 Ala. 23, 106 So. 242; Northcutt v. Davis, 113 Kan. 444, 214 Pac. 1113; Nashville, C. & St. L. Ry. Co. v. Henry, 158 Ky. 88, 164 S.W. 310; Holtz v. Railroad Co., 176 Minn. 575, 224 N.W. 241; Burho v. Railroad Co., 121 Minn. 326, 141 N.W. 300; Texas & P. Ry. Co. v. Sprole,......
  • Laughlin v. Kansas City Southern Ry. Co., No. 18904.
    • United States
    • United States State Supreme Court of Missouri
    • July 16, 1918
    ...of damages sanctioned by the federal courts. This course has been pursued in other jurisdictions (Nashville, etc., Railway v. Henry, 158 Ky. 88, 164 S. W. 314; Panhandle, etc., Ry. v. Brooks [Tex. Civ. App.] 199 S. W. 665), and is recognized as the proper rule by the federal courts (Seaboar......
  • Baker v. C.B. & Q. Railroad Co., No. 29008.
    • United States
    • United States State Supreme Court of Missouri
    • May 21, 1931
    ...injury producing those effects, is permitting a double recovery. 5 Sutherland on Damages (4 Ed.) 5091; N.C., etc., Railroad Co. v. Henry, 158 Ky. 88; C.R.I. & P. Ry. v. Caulfield, 63 Fed. 399. (b) Instruction numbered 2 is erroneous: It mixes in one instruction two different causes of actio......
  • C., N.O. & T.P.R. Co. v. McWhorter
    • United States
    • Kentucky Supreme Court
    • June 19, 1925
    ...to the views expressed in Ohio Valley Electric Ry. Co. v. Brumfield's Admr., 180 Ky. 751, 203 S.W. 541, and N.C. & St. L. Ry. Co. v. Henry, 158 Ky. 88, 164 S.W. This court by that meant that the statement of the law as contained in the Henry case should be accepted as qualified and explaine......
12 cases
  • Kimberling v. Wabash Ry. Co., No. 32531.
    • United States
    • United States State Supreme Court of Missouri
    • July 30, 1935
    ...Co. v. Cornett, 214 Ala. 23, 106 So. 242; Northcutt v. Davis, 113 Kan. 444, 214 Pac. 1113; Nashville, C. & St. L. Ry. Co. v. Henry, 158 Ky. 88, 164 S.W. 310; Holtz v. Railroad Co., 176 Minn. 575, 224 N.W. 241; Burho v. Railroad Co., 121 Minn. 326, 141 N.W. 300; Texas & P. Ry. Co. v.......
  • Laughlin v. Kansas City Southern Ry. Co., No. 18904.
    • United States
    • United States State Supreme Court of Missouri
    • July 16, 1918
    ...of damages sanctioned by the federal courts. This course has been pursued in other jurisdictions (Nashville, etc., Railway v. Henry, 158 Ky. 88, 164 S. W. 314; Panhandle, etc., Ry. v. Brooks [Tex. Civ. App.] 199 S. W. 665), and is recognized as the proper rule by the federal courts (Seaboar......
  • L. & N.R. Co. v. Noble's Administratrix
    • United States
    • United States State Supreme Court (Kentucky)
    • May 16, 1930
    ...then succeeds in making out a submittable case, that being one of the questions we reserve. Nashville, C. & St. L. Ry. v. Henry, 158 Ky. 88, 164 S.W. 310; Chesapeake & O.R. Co. v. Kelly, 241 U.S. 485, 36 S. Ct. 630, 60 L. Ed. 1117, L.R.A. 1917F, The court in instructing the jury err......
  • St. Louis Southwestern Ry. Co. v. Pyron, (No. 3118.)<SMALL><SUP>*</SUP></SMALL>
    • United States
    • Court of Appeals of Texas
    • November 26, 1925
    ...170 C. C. A. 452; Nichols v. Ry. Co., 195 F. 913, 115 C. C. A. 601; Ry. Co. v. Powell (Tex. Civ. App.) 252 S. W. 268; Ry. Co. v. Henry, 158 Ky. 88, 164 S. W. 311; Noel v. Ry. Co. (Mo. App.) 182 S. W. 787; Ry. Co. v. Thomas, 21 Ariz. 355, 188 P. 268; and Montgomery v. Ry. Co., 163 N. C. 597,......
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