Sandy Valley & E. Ry. Co. v. Tackitt

• Decision Date: 14 January 1916
• Parties: SANDY VALLEY & E. RY. CO. v. TACKITT.
• Court: Kentucky Court of Appeals

181 S.W. 349

167 Ky. 756

SANDY VALLEY & E. RY. CO. v. TACKITT.

Court of Appeals of Kentucky.

January 14, 1916

Appeal from Circuit Court, Pike County.

Action by Willie Tackitt against the Sandy Valley & Elkhorn Railway Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Auxier Harman & Francis, of Pikeville, and Hager & Stewart, of Ashland, for appellant.

Staton & Pinson, of Pikeville, for appellee.

CLAY C.

Claiming to have been ruptured while operating a lifting jack, and that his injuries were due to the negligence of defendant in ordering him to operate the jack alone and in failing to furnish a sufficient force to operate the jack, plaintiff Willie Tackitt, brought this action against defendant, Sandy Valley & Elkhorn Railway Company, to recover damages. A trial before a jury resulted in a verdict and judgment in favor of plaintiff for $2,780. Defendant appeals.

The evidence for plaintiff tends to show the following facts Plaintiff was a laborer in defendant's employ. He had been at work for about three months, and was engaged in dressing track, tamping ties, and operating the jack. In the work of operating the jack he had had only about three weeks' experience. At the time of his alleged injury the company was using two jacks. Tom Harman was in charge of the rear jack, while plaintiff, with the assistance of William George Tackitt, was operating the jack in front. There were seven or eight men in the crew, and John Keaton was the foreman. Addressing plaintiff and William George Tackitt Keaton said:

"By G ___, it looks like if Tom Harman could pull this jack, looks like one of you fellows ought to pull that."

He also remarked that it was a one man's job, and that he had pulled a jack for three months by himself. Thereupon William George Tackitt dropped back and left plaintiff on the jack. After working 10 or 15 minutes plaintiff felt something tear about his groin. He then went down the road and came back and mentioned it to Keen Harman. After that he worked a little over 3 days, when it began hurting him so badly he quit. Later on he went to Keaton's house and told him that he was ruptured. He further says that when the accident occurred he was working on the inside of the curve, and that the ballast was very heavy where they were at work. Later on he consulted a physician, and since that time he has not been able to do heavy work. Sam Ray, plaintiff's brotherin-law, testified that plaintiff called for help, and William George Tackitt started to help him. Thereupon John Keaton stated that if Tom Harman could pull his jack, it looked like one of them could pull the other jack. Thereupon William George Tackitt went back to tamping ties. He saw the place where plaintiff was injured. Plaintiff afterwards went to Keaton, and Keaton told him that if he was hurt, he had better lay off a few days. In describing the accident this witness said:

"He [plaintiff] went to pull on it and tried to move it and couldn't, and he got down on the end of the bar to try to get it to go, and when he did that, I saw him get off the lever and go down the road. He stayed down there a while and then came back."

Several witnesses testified that when the ballast was heavy three or four men were required to operate the jack, but when the ballast was light two or three men could operate it.

For the defendant John Keaton testified that plaintiff worked for 4 days and 4 hours after he claimed that he was hurt. After plaintiff quit work he never heard of any complaint that he was ruptured. Plaintiff, however, told him on November 23d that be believed he was going to be ruptured. He denied using the language attributed to him by plaintiff and his witnesses. He heard plaintiff and Tom Harman discussing their abilities to run the jacks. One bet the other $5 that he could run it. Witness told the person making the bet that he would lose the money, as he himself had run a jack many a time. William George Tackitt testified that on the occasion in question John Keaton said something about the operation of the jack being a one man's job. While Keaton did not direct him to quit, yet what Keaton said was the cause of his quitting. There was further evidence to the effect that on several occasions plaintiff and other workmen engaged in a test of their strength by lifting rails, hand cars, etc.

Defendant insists that a peremptory instruction should have gone in its favor. On the other hand, plaintiff contends that the facts bring it within the rule laid down in I. C. R. R. Co. v Langan, 116 Ky. 318, 76 S.W. 32, 25 Ky. Law Rep. 500, and L. & N. R. Co. v. Mahan, 113 S.W. 887. In the first-mentioned case plaintiff and three others were engaged in moving steel shafts, weighing from 200 to 460 pounds each, from the company's cars to the freight platform. They were working under the direction of a freight clerk. After moving several of the...