Raikes v. Payne, Director General

• Court: Kentucky Court of Appeals
• Writing for the Court: Clay
• Citation: 198 Ky. 820
• Decision Date: 20 April 1923
• Parties: Raikes v. Payne, Director General.

198 Ky. 820 Raikes
v.
Payne, Director General. Court of Appeals of Kentucky. Decided April 20, 1923. Appeal from Henderson Circuit Court.

Page 821

A. LEA KING and JOHN C. WORSHAM for appellant.

JOHN L. DORSEY, JR., and TRABUE, DOOLAN, HELM & HELM for appellee.

OPINION OF THE COURT BY JUDGE CLAY — Affirming.

Proceeding under the Federal Employers' Liability Act, 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 & 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

Page 822

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, Indiana. 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 employes 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, Indiana, about 9:30 p. m. on the night he was injured, and reached Henderson some time after eleven 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 lunch room in the passenger...