Norfolk & W. Ry. Co. v. Robinette

• Decision Date: 01 February 1935
• Citation: 78 S.W.2d 802,257 Ky. 558
• Parties: NORFOLK & W. RY. CO. v. ROBINETTE.
• Court: Kentucky Court of Appeals

78 S.W.2d 802

257 Ky. 558

NORFOLK & W. RY. CO. v. ROBINETTE.

Court of Appeals of Kentucky

February 1, 1935

Appeal from Circuit Court, Pike County.

Action by Willie Robinette against the Norfolk & Western Railway Company. Judgment for plaintiff, and defendant appeals.

Reversed with directions.

Johnson & Hinton, of Pikeville, for appellant.

Roscoe Vanover, E. J. Picklesimer, and A. F. Childers, all of Pikeville, for appellee.

THOMAS Justice.

The appellee and plaintiff below, Willie Robinette, filed this ordinary action in the Pike circuit court against the appellant and defendant below, Norfolk & Western Railway Company, seeking the recovery of a judgment against it for $2,540 as damages sustained by plaintiff as one of its employees while working as a section hand, and whereby he was burned and otherwise injured from handling creosoted ties. The petition as amended charged that plaintiff was unaware of the danger incident to handling creosoted ties, and that defendant was, or should have been, aware of such danger and failed to warn him of it. The trial court sustained a demurrer to the petition as so amended and dismissed it which judgment we reversed in the case of Robinette v Norfolk & Western Railway Co., 249 Ky. 93, 60 S.W.2d 344. After the filing of the mandate from this court defendant's answer was filed, in which it denied all of the material allegations of the petition and also relied on assumed risk, contributory negligence, and a plea of limitation. Following pleadings made the issues and upon trial before a jury, it, under the instructions given by the court, returned a verdict in favor of plaintiff for the sum of $500, and from the judgment rendered thereon it prosecutes this appeal after its motion for a new trial was overruled.

A number of grounds were relied on in the motion for a new trial as constituting errors authorizing a reversal of the judgment, many of which are argued and pressed in brief filed by counsel for defendant, but we deem it necessary to only notice or discuss (1) that under the evidence plaintiff assumed the risk; (2) the verdict is excessive; and (3) it, in so far as it found that the action was not barred by the one-year statute of limitations, is flagrantly against the evidence; each of which will be disposed of in the order named. But, before doing so, a brief reference will be made to a fourth argument, which is that plaintiff was not at the time, nor was he ever, in the employ of defendant. Aside from the testimony of plaintiff himself that one or more checks received by him in payment of his compensation was signed by defendant, the evidence is overwhelming that he was employed, and had been all the while, by a separate and independent corporation known as the Big Sandy & Cumberland Railroad Company, which owned and operated a narrow gauge railroad from some point in Pike county, Ky. to Devon, in Virginia, at which latter point it connected with the tracks of defendant. Some time in 1928 or 1929 the latter company concluded to remodel its track by making it a regular gauged one, and cutting out some of the curves, and it was in the performance of that work in the year 1930 when plaintiff sustained his injuries; he having been employed by the Big Sandy & Cumberland Railroad Company as a section hand some time about the 1st of April of that year. After the indicated alterations were made in the track of the Big Sandy & Cumberland Railroad Company, it was taken over by the defendant and has been operated by it since then. The evidence is preponderating that the work in which plaintiff was engaged at the time was being performed by the Big Sandy & Cumberland Railroad Company and that it was his sole employer; but, inasmuch as the judgment must be reversed for the errors hereinafter considered, we have concluded to pass this point without further discussion, and will proceed to a consideration of those enumerated above.

1. In our cited opinion rendered on the former appeal of this case we employed this language: "The demurrer was sustained on the ground that Robinette assumed the risk. The doctrine of assumed risk proceeds on the theory that the servant has actual or implied notice of the risk. Hence, if the danger is known and appreciated by the servant, or is so obvious that a person of ordinary prudence in his situation would have known and appreciated it, he assumes the risk and no warning is required." Since the petition, the sufficiency of the allegations of which only was before us at that time negatived such facts or knowledge on the part of plaintiff, we held that the court erred in sustaining the demurrer filed thereto and in dismissing it. This appeal, however, discloses an entirely different situation. The uncontradicted proof for defendant is to the effect that from the time plaintiff began work as an employee of his employer (whoever it may have been) he was...