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

• Decision Date: 01 February 1916
• Citation: 181 S.W. 1101,168 Ky. 219
• Parties: SANDY VALLEY & E. RY. CO. v. BRIDGMAN.
• Court: Kentucky Court of Appeals

181 S.W. 1101

168 Ky. 219

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

Court of Appeals of Kentucky.

February 1, 1916

Appeal from Circuit Court, Pike County.

Action by George Bridgman against the Sandy Valley & Elkhorn Railway Company. From a judgment for plaintiff, defendant appeals. Reversed, with directions for new trial.

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

Roscoe Vanover and E. J. Picklesimer, both of Pikeville, for appellee.

CARROLL J.

In this action by the appellee Bridgman against the appellant company to recover damages for personal injuries, the petition, after stating that the company as well as the employé at the time of the accident were engaged in interstate commerce, charged that:

On the 25th day of July, 1912, Bridgman was in the employment of the appellant company in the repair and construction of the tracks, and "that the agents, servants and employés superior in authority to him directed him to ride on a hand car run along defendant's said road in returning from his work, and while said hand car was being so run and propelled at an excessive rate of speed, the agents, servants, and employés of defendant superior in authority to plaintiff carelessly and negligently placed his foot upon the brake of said hand car without any notice or warning to plaintiff that same would be done, and, by placing his foot on the brake of said hand car, gave said hand car a sudden jerk, which threw plaintiff from and in front of said hand car, which ran against and over him."

The answer denied that either the company or the plaintiff was engaged in interstate commerce, and although admitting that on the day of the accident the plaintiff was in the employment of the company, engaged in the construction of its track, it denied that he was in the line of his duty under his employment at the time plaintiff got on the car, or that the agents, servants, or employés of the company superior in authority to him directed him to ride on the hand car or directed him to ride at all, or that a superior servant of the company in charge of the car was running or operating the car at an excessive rate of speed or at all. It further denied that any agent, servant, or employé of the company superior in authority to the plaintiff, or any agent servant, or employé whatever of the company, carelessly or negligently, or at all, placed his foot upon the brake of the hand car without notice of warning to plaintiff that the same would be done, or at all or thereby, or at all, gave the car a sudden jerk, or threw the plaintiff from or in front of said car, or caused the car to run over or against him. Other paragraphs of the answer set up other defenses; but, in the view we have of the case, it is not necessary to refer to these other defenses, nor do we regard it as material whether the company and Bridgman were engaged in interstate commerce at the time the accident happened. In cases like this, the duty and liability of the company is the same whether it is engaged in interstate or intrastate traffic.

After the issues had been made up, there was a trial before a jury, and the evidence showing that Bridgman was thrown from the car, as we may assume, by the negligence of one Tackett, a coemployé of Bridgman who was riding on the car, there was a verdict and judgment in favor of Bridgman for $5,000.

At the conclusion of the evidence for the plaintiff, and again when all the evidence was in, the company moved the court to peremptorily instruct the jury to return a verdict for it, and, this motion having been overruled each time, the only question that we think it necessary to consider is the correctness of these rulings of the court. Whether the motion for a directed verdict should have been sustained depends on whether Bridgman at the time he was injured was in the service of the company, and on the further question whether the negligent act of the person who caused his injury was committed by such person while in the service of the company and acting for it within the scope of his employment. In fact, we might further limit the inquiry by saying that if Tackett, whose negligence caused the injury, was not at the time of the commission of the negligent act in the service of the company and acting within the scope of his employment, there should be no recovery. But, although the inquiry may be so limited, we think it well enough to also consider whether Bridgman was at the time of the injury in the service of the company. The disposition of these matters turns largely upon the evidence, and to that we will now address ourselves.

Bridgman testified that on July 25, 1912, he was working for the railroad company as a laborer and engaged in raising the track and filling under the ties; that at the time he was boarding with Marion Vanover about three or four miles from the place at which he was working and where he had been working for about four days. He was further asked and said:

"Q. What, if anything, was provided for you to go backwards and forwards from your boarding house? A. I don't understand the question. Q. How did you get from your boarding house to work? A. On a lever car. Q. What is known as a hand car? A. Yes, sir. Q. I will ask you if that was provided for you to go on, and were you directed to go on it? A. I understand it was. Q. What happened on the 25th day of July, 1912, if anything? A. I got knocked off the lever car and it ran over me. Q. Where were you going? A. To my boarding house. Q. What time of the day was it? A. Along in the evening, not far from 6 o'clock. Q. Had you done your day's work? A. Yes, sir. Q. And started to your boarding house? A. Yes, sir. Q. You may tell the jury what threw you from the lever car. A. I understand Calvin Tackett put his foot on the brake without giving me any warning, and it checked the speed and threw me off. Q. Did you understand some one checked it? A. Yes, sir. Q. Did you have any warning before they checked it that it was going to be stopped? A. No, sir. Q. You say you had been working how many days? A. Four days. Q. When you went to work, how did you get there? A. I went upon the train. Q. And the train was running there? A. Yes, sir. Q. Who had directed or told you that you could ride on that hand car going backwards and forwards to your boarding house? A. Calvin Tackett said he had the car under his control, and he told me to ride on it and go with him to the boarding house. Q. Was that the first time you had gone on the hand car? A. No, sir. Q. How many times had you come on the hand car before you got hurt? A. I had come twice before that time. Q. Who had it in charge then? A. Calvin Tackett. Q. What was Calvin Tackett doing? A. He was working same as I was. Q. With the same crew you were working with? A. Yes, sir. Q. And he was running a boarding house? Is that a fact? A. He was boarding some. Q. Did you board with Calvin Tackett? A. No, sir; I boarded at his sister's above his house. Q. How far above his house? A. A little piece. Q. But you were boarding with these parties down at Three Mile, were you not? A. Yes, sir. Q. Something like three or four miles from that place? A. Yes, sir. Q. On the evening you got hurt, you were going from Shelby Gap to your boarding house? A. Yes, sir. Q. What caused you to get on the car? A. Well, Calvin Tackett told me to get on it. He told me he would let me ride on it. Q. Did you ask him to let you ride on it? A. I asked him. Q. What did you say? A. I asked him would he let me ride to Three Mile on the hand car, and he said, 'Yes, sir.' Q. Were all the men that were on the hand car working for the railroad company? A. I don't know about that, but I suppose they were. Q. Did they all board at Calvin Tackett's and his sister's? A. I don't know whereabouts they all boarded. To the best of my knowledge there was four at Calvin's sister's house, and I don't know how many at Calvin's."

Calvin Tackett, a witness for Bridgman, testified as follows:

"Q. In your own way, Mr. Tackett, tell the jury what happened and all about it. A. Well, we had started back to our boarding houses from work and was going down from Shelby Gap, a right smart grade, and I seen another lever car coming very close, and I put the brake on the car, and when I done this Bridgman headed over in front of the car, and it run over him. Q. How many men were on the car at that time? A. To the best of my recollection, there were about 14. Q. Before braking that car, did you give any warning to any one that you were going to brake it? A. No, sir. Q. How far was it from your work to where you were going to the boarding house on the hand car? A. It was about three miles, and maybe more. Q. At what place did you board? A. I was at home. Q. Where was the plaintiff boarding at that time? A. He was boarding at my sister's. Q. Tell the jury how you happened to be riding on the lever car. Who had it under control? A. I had it under control. Q. Tell how you got it. A. I got it of Cap Johnson. Q. What was done or said between you and Johnson? How did you get the car? A. The work train had been carrying us in and out, and they quit that on the Saturday before this happened. And on Sunday I went to Mr. Johnson and told him that us boys would have to quit working; that we lived on Three Mile creek and would have to quit work if we didn't get a hand car to ride in and out on; and he said, 'How many?' and I said, 'About sixteen,' and he says, 'Come out in the morning and I will let you have two cars if you will promise me you will take care of the cars and see that no one uses them only going in and out from work.' Q. What position did he hold with reference to the work? A. He was superintendent of the work, to the best of my knowledge. Q. How many

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