Raikes v. Payne

• Citation: 198 Ky. 820,249 S.W. 1020
• Parties: RAIKES v. PAYNE, DIRECTOR GENERAL.
• Decision Date: 20 April 1923
• Court: Kentucky Court of Appeals

249 S.W. 1020

198 Ky. 820

RAIKES v. PAYNE, DIRECTOR GENERAL.

Court of Appeals of Kentucky.

April 20, 1923

Appeal from Circuit Court, Henderson County.

Action by Labe S. Raikes against John Barton Payne, Director General of Railroads. Judgment for defendant on directed verdict, and plaintiff appeals. Affirmed.

A. Lea King and John C. Worsham, both of Henderson, for appellant.

John L Dorsey, Jr., of Henderson, and Trabue, Doolan, Helm & Helm of Louisville, for appellee.

CLAY J.

Proceeding under the federal Employers' Liability Act (U. S. Comp St. §§ 8657-8665), Labe S. Raikes brought this suit in the Henderson circuit court against the Director General of Railroads in charge of the operation of the Louisville &amp Nashville Railroad Company and the Illinois Central Railroad Company to recover damages for personal injuries. The action as to the Illinois Central Railroad Company was removed to the United States District Court for the Western District of Kentucky and afterwards dismissed. On the trial of the cause against the Director General in charge of the operation of the Louisville & Nashville Railroad Company the trial court gave a peremptory instruction in favor of the defendant. Plaintiff appeals.

Though the railroads were under federal control at the time of the accident, yet, for the sake of brevity and clearness, we shall discuss the case as if only the railroads themselves were involved, and not the Director General in charge of their operation.

In support of his cause against the Louisville & Nashville Railroad Company appellant pleaded the following facts: The Louisville & Nashville Railroad Company owned and operated certain tracks and railroad yards in the city of Henderson and a bridge extending from Henderson across the Ohio river, upon which bridge a railroad track was located and operated. The Illinois Central Railroad Company operated its trains in and through said yards of the Louisville & Nashville Railroad Company under a contract by which such user was permitted upon certain terms as to compensation. The Louisville & Nashville Railroad controlled the operation of all locomotives and trains in said railroad yards, both its own and those of the Illinois Central Railroad Company, and, subject to such control, the trains of the Illinois Central Railroad Company were being operated in the yards at the time of the accident. Appellant was a brakeman in the employ of the Louisville & Nashville Railroad Company, and had made a trip on a freight train from Howell, Ind. He left the train in the yards at Henderson for the purpose of crossing to the depot to await the arrival of a north-bound Louisville & Nashville train on which he intended to return to Howell. In going to the depot it was necessary for him to walk through the railroad yards and across a track upon which the trains of the Illinois Central Railroad were being operated. While doing so, he was struck and severely injured by an Illinois Central train. For some time prior to the accident the railroad yards and tracks had been used by the railroad employees in going along and across same in discharge of their duties with the knowledge and acquiescence of the railroads. The Illinois Central Railroad Company was negligent because it ran its train at an excessive rate of speed and failed to give any warning of its approach, and the Louisville & Nashville Railroad Company was negligent in permitting the Illinois Central Railroad to run its train at an excessive rate of speed and without sufficient warning.

According to appellant's evidence, he left Howell, Ind., about 9:30 p. m. on the night he was injured, and reached Henderson some time after 11 o'clock p. m. When he reached Henderson, he was instructed by the conductor to take the registration card into the telegraph office and leave it. The telegraph office was located just across from the depot, and between it and the depot were tracks Nos. 1, 2 and 3. After giving the card to the operator, he started from the telegraph office to the lunchroom in the passenger station to get something to eat and catch Louisville & Nashville train No. 54, on which he was to leave some time later. In crossing the tracks he was struck and severely injured by an Illinois Central train running north on track No. 2, which, according to his evidence and that of others, was running at a high rate of speed and gave no signals of its approach.

There was introduced in evidence a contract dated March 1, 1901 between the Louisville & Nashville Railroad Company, the Illinois Central Railroad Company, and the Louisville, Henderson & St. Louis Railroad Company. It appears from the contract that the Illinois Central Railroad Company was the owner in fee of certain land in Henderson on which it was proposed to build a union passenger station. The contract recited that it was the desire and purpose of the parties to establish and jointly to make use of a passenger station with appurtenant tracks, platforms, sheds, and roadways, and all other needful facilities,...