Norfolk & W. Ry. Co. v. Short's Adm'r

• Decision Date: 24 October 1916
• Citation: 188 S.W. 786,171 Ky. 647
• Parties: NORFOLK & W. RY. CO. v. SHORT'S ADM'R.
• Court: Kentucky Court of Appeals

188 S.W. 786

171 Ky. 647

NORFOLK & W. RY. CO. v. SHORT'S ADM'R.

Court of Appeals of Kentucky.

October 24, 1916

Appeal from Circuit Court, Boyd County.

Action by Charles Short's administrator against the Norfolk &amp Western Railway Company. Judgment for the plaintiff, and defendant appeals. Affirmed.

J. R Johnson, Jr., of Pikeville, and Holt, Duncan & Holt, of Huntington, W. Va., for appellant.

John T Diederich, Proctor K. Malin, and S. S. Willis, all of Ashland, for appellee.

CARROLL J.

This appeal is prosecuted from a judgment of the Boyd circuit court awarding the administrator of R. G. Short $2,000 in a suit under the federal Employers' Liability Act to recover damages for his death.

A reversal is asked upon four grounds: (1) That Short was not engaged in interstate commerce at the time of his death; (2) that his negligence was the proximate cause of his death; (3) that he was performing no duty he owed the company when the accident occurred; and (4) for error in giving and refusing instructions.

Under the federal Employers' Liability Act it is necessary, as said by counsel for the railroad company, to allege and prove that the carrier was engaged in interstate commerce, and that the employé was actually employed in such commerce at the time of the injury for which he or his personal representative seeks to recover damages.

Upon this issue it is admitted that the Norfolk & Western Railway was engaged in interstate commerce at the time the injuries from which Short died were sustained, and we do not think there is any room for doubt that Short, at the time of his death, was actually employed by the railway company in such commerce. The evidence clearly shows that the train on which Short was working at the time he was injured was an interstate train which had come from a West Virginia coal field and was temporarily stopped on its journey in the yards of the company at Portsmouth, O. In fact, it appears that these yards in the state of Ohio were exclusively used by coal trains going to and coming from the coal fields of West Virginia, so that all the traffic handled in these yards was really interstate traffic.

The next contention is that Short, at a time when he was not in the course of his employment, and by his own negligence, brought about the injury that resulted in his death; and this issue, which is really the principal one in the case, makes it necessary to state in some detail the evidence.

In the yards at Portsmouth were 40 or more switch tracks on which trains were constantly being shifted about during the day and night. There were employed in the yards about 1,800 men engaged in different kinds of service connected with the movement of trains and the handling and repair of cars; and these men in the course of their various duties were at all times going about in the yards crossing and recrossing these switch tracks.

Short and one Ferris Dials, at the time the accident that resulted in the death of Short occurred, were employed as repairmen in the yards. Their duties consisted in looking over the coupling apparatus of the cars to see if they were in good order, and, if not, it was the duty of these men to repair them. The yards were divided into what is called the "heavy side" and the "light side," and separate crews of men worked on each of these sides. It further appears that Short and Dials were engaged at work on the "heavy side" of the yard. On the night Short was killed these two men in the course of their duties discovered that the knuckle pins in the couplings on one of the cars standing on track No. 9 on the "heavy side" of the yard were either defective or missing, and so it became their duty to supply the defective or missing knuckle pins with others. It also appears that the railway company had places on the "heavy side" of the yard where it kept extra knuckle pins and other like repairs for use when needed, and this fact was known to Short as well as Dials, as Dials had been working on this "heavy side" as a repairman for several months, although Short had been there only a few days.

It is further shown in the evidence that the extra knuckle pins that were kept in a box convenient to the place where this defective car was standing had all been used, and so it became necessary for these men to get knuckle pins some other place. They could have gotton them out of a supply kept at a place on the "heavy side" some distance from where they were working, but instead of going to this place Dials suggested that they could go down to the "light side," which was closer, and find knuckle pins there. And so each with a lantern in his hand walked across the tracks from track 9 on the "heavy side" to track 17 on the "light side." When they got to this track Dials found one knuckle pin, and Short, while looking around for another, had occasion to cross track 16 in an open space that had been left between two cuts of cars standing on this track. At the time that Short stepped in this open space between the standing cars on track 16, a cut of cars that had been shunted in on track 16 by an engine, in making what is called a "running switch," struck one cut of the standing cars between which Short was walking, or standing, causing it to suddenly collide with the other cut of standing cars, and Short was instantly killed in the collision. The two cuts of cars between which Short was crossing the track were standing probably 500 feet from the end of the switch on which the engine shunted the cars from the lead track onto switch track 16, but the engine before it had been cut off from the string of cars shunted in on track 16 had given these cars sufficient momentum to cause them to roll along on track 16 from the head of the switch to the cut of cars standing on this track.

It was further shown without dispute that there was no brakeman on the front end of the cut of cars that was shunted in on the track, nor was any notice or warning given by ringing the bell or blowing the whistle of the engine, or in any other way, that this cut of cars would be or was being shunted in on this track, and so they went without any person on or about them to control their movement or give notice or warning of their approach.

It is also shown in the evidence in behalf of Short's administrator, although contradicted by the evidence for the railway company, that it was customary for repairmen working on the "heavy side" to go to the "light side" when they wanted for repair purposes appliances such as knuckle pins that could be found on the "light side." Especially was this practice engaged in when it happened that the car in need of repair was some distance from the place where repairs on the "heavy side" were kept, or if the supply of repair parts at these places was exhausted.

It is also shown that it was not customary in the movement of trains in the yards to give notice or warning of their approach by ringing the engine bell or blowing the whistle nor was it usual to have a brakeman on the front end of the cars when they had been cut loose from the engine by the process of a "running switch." It was further shown that the company had adopted rules, with which it may be presumed Short was familiar, requiring employés when they went between standing cars for the purpose of making repairs in the nighttime to put blue lights at each end of the cars between which they intended to work as notice to the trainmen that repairs were being made in and about the cars. But we do not think this rule has any application to the case we have,...