Schaeffer, Admx. v. I. C. R. R. Co.
| Citation | 172 Ky. 337 |
| Parties | Schaeffer, Administratrix, et al. v. Illinois Central Railroad Company, et al. |
| Decision Date | 22 November 1916 |
| Court | Court of Appeals of Kentucky |
Appeal from McCracken Circuit Court.
BRADSHAW & NICHOLS for appellants.
WHEELER & HUGHES, BLEWETT LEE and TRABUE, DOOLAN & COX for appellees.
This action was brought in the court below against the appellees, Illinois Central Railroad Company, and J. C. McCarthy, by the appellant, Mrs. T. E. Schaeffer, as administratrix of the estate of her deceased husband, T. E. Schaeffer, to recover damages for his death, which resulted from injuries to his person caused, as alleged in the petition, by the gross negligence of the appellee, railroad company and its servant, J. C. McCarthy, foreman of its wrecking crew and the decedent's superior in authority. On the trial and following the introduction of her evidence, appellant sustained a non-suit and, from the judgment entered upon the verdict directed by the court, she prosecutes this appeal.
The action was brought under the Federal Employers' Liability Act, it being alleged in the petition that the work in which the decedent was engaged at the time of receiving the injuries that caused his death was interstate commerce, and that he was survived by his widow, the appellant, and one child, Theodore B. Schaeffer, a boy ten years of age, both of whom were wholly dependent upon him for their support. Appellees' answer denied the negligence alleged in the petition or that the decedent was engaged in interstate commerce at the time of receiving his injuries, and pleaded assumption of risk on the part of the latter. The affirmative plea was controverted by reply.
The following brief statement of the facts will show the circumstances under which appellant's decedent sustained the injuries resulting in his death: About December 31, 1914, one of appellee's freight trains, while passing from Paducah over its line to Evansville, Indiana, was wrecked near Marion in this State, causing the track to become obstructed. On the same day a wrecking crew, of which the decedent, T. E. Schaeffer, was a member, was ordered to go from the city of Paducah with a train known as a "wrecker," to the place of the accident, with directions to load the wrecked cars and parts thereof upon the wrecker and return them to Paducah, which they did. Upon their arrival at Paducah the cars loaded with the wrecked material were placed on a track in the appellee's railroad yards, where they remained until January 9, 1915, at which time the members of the wrecking crew, including the decedent, were ordered to unload the wrecked material from the cars on the side track. According to appellant's evidence, while thus unloading the cars the decedent and another of appellee's employes, under the direction of its foreman, J. C. McCarthy, took a pole, one end of which they placed against a car and held the other end where the wrecker could be moved up against it for the purpose of shoving the car further down the track that some car trucks then being unloaded might be placed upon the ground. At the time this direction was given the decedent and the other employe referred to, the wrecker was holding suspended from the end of the car a set of "Fox trucks" and when the movement of the wrecker and car took place certain hooks which were placed under the center plate of the Fox trucks slipped or turned loose, causing the trucks to fall on Schaeffer, producing the injuries of which he soon died. The trucks that fell upon him were placed to one side and nothing more done with them until February 18, 1915, at which time they seem to have been reloaded on a car with one other set of trucks and billed to Burnside, Illinois. It was shown by the testimony of certain of appellant's witnesses that the manner of unloading the wrecked material adopted and directed by appellee's foreman, McCarthy, was not the usual or a safe method of doing such work. Others of them, fewer in number, expressed the opinion, however, that the method of unloading was reasonably safe and the customary way of doing such work.
But conceding that the foreman was negligent in directing the method of unloading adopted, the question arises, did the evidence bring the case within the provisions of the Federal Employers' Liability Act? In other words, was the work in which the decedent was engaged, when the injuries causing his death were received interstate commerce? The trial court was of the opinion that the work was not interstate commerce, for which reason it peremptorily instructed the jury to return a verdict for the appellee. The pleadings seem to make no issue as to the fact that the appellee railroad company is an interstate as well as intrastate public carrier of freight and passengers and, therefore, engaged in interstate commerce, but it does not follow from this fact...
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