South Covington & C. St. Ry. Co. v. Finan's Adm'x

• Decision Date: 23 April 1913
• Citation: 153 Ky. 340,155 S.W. 742
• Parties: SOUTH COVINGTON & C. ST. RY. CO. v. FINAN'S ADM'X. d
• Court: Kentucky Court of Appeals

155 S.W. 742

153 Ky. 340

SOUTH COVINGTON & C. ST. RY. CO. v. FINAN'S ADM'X. d

Court of Appeals of Kentucky.

April 23, 1913

Appeal from Circuit Court, Kenton County, Common Law and Equity Division.

Action by Henry M. Finan's administratrix against the South Covington & Cincinnati Street Railway Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Robert C. Simmons, of Covington, for appellant.

Myers &amp Howard, of Covington, for appellee.

MILLER J.

Henry M. Finan, a motorman in the service of the appellant railway company, was directed to take a car from the company's barn in Newport, Ky. to Fountain Square in Cincinnati, Ohio. He left the car barn in Newport about 5 o'clock in the afternoon, and his course led him across the Central Broadway Bridge, which spans the Ohio river from the foot of York street in Newport, Ky. to the foot of Broadway in Cincinnati Ohio. The bridge has a decided apex about its middle, and from that point it steadily declines towards the Ohio side. At a point 674 feet north from the apex, or crest of the bridge, it turns to the left at an angle of 52 degrees. The car carried Finan, the motorman, Wessling, the conductor, and Hempel, Holo, and Schroll as passengers. After the car had passed the apex of the bridge, it gathered speed. When it reached the angle or turn of the bridge above referred to, it was moving at a high rate of speed, and, instead of following the track around the curve, it jumped the track, crossed the adjoining footway, went through the railing located on the side of the bridge, and fell to the ground below a distance of about 30 feet. Every one in the car was badly injured Finan's injuries resulting in his death the next day. His administratrix brought this suit for damages; and, having recovered a verdict and judgment for $10,000, the defendant prosecutes this appeal.

The petition alleges that appellant was an interstate carrier of passengers; and for cause of action it alleges that the flanges of the car wheels were worn, nicked and broken, so that the car could easily leave the rails, especially on abrupt curves, such as existed at the point in question. It was further alleged that the brake shoes of the car were so worn and defective, as to make it impossible for Finan to control the movements of the car; and that all of these facts were known and could have been known by the exercise of reasonable care upon the part of appellant, but were unknown to the decedent, and could not have been known by him in the exercise of ordinary care on his part. Appellee's cause of action was stated in three separate numbered paragraphs. In the first paragraph she states the facts showing how the accident happened, adding thereto the averments above noted as to the condition of the car and its equipment, and the negligence of appellant in permitting its car to be used with knowledge of its defective condition, or with failing to use ordinary care to discover it. It also negatives decedent's want of knowledge of the defective condition of the car. The second paragraph alleges that the car in question was an instrument of interstate commerce; and, after again describing the defective condition of the car, it further alleges that decedent's injuries and death were caused by the gross, wanton, and willful carelessness and negligence of appellant, as above stated. The third paragraph, after again reciting the manner in which the accident happened, and again repeating the allegations as to the defective equipment of the car, further alleges that under a statute of the state of Ohio, in which state the accident happened, appellee was entitled to recover for the death of her intestate. The Ohio statutes are set out in full in the petition. During the trial an amended petition was filed making additional reference to the law of Ohio, in so far as same abrogates or modifies the fellow-servant doctrine. Before answering, appellant moved the court to require appellee to elect which cause of action set up in the petition she would prosecute, but this motion was overruled; and without waiving the objection appellant answered, traversing the allegations of the petition, and interposing a plea of contributory negligence, which was traversed by a reply. When the case was called for trial, appellant renewed its motion to require appellee to elect, but the motion was again overruled. At the conclusion of the evidence, appellant moved to exclude all evidence and matters in the pleading pertaining to the law of Ohio, but this motion was also overruled.

The evidence as to the facts immediately connected with the accident is brief, and without any substantial contradiction. Appellee introduced Hempel, a passenger, who sat on the left side of the car. He testified that he noticed the car was going fast just before the accident, and that he could see the motorman standing in his position, and could see his left hand throw off the current, his right hand operating the brake. Holo, the other passenger, was sitting on the opposite side of the car from Hempel, and testified he saw the motorman working the brake, but without result toward checking the speed of the car, which began to increase soon after the car passed the toll office on the Newport side, and before the car began its descent on the Cincinnati side. He says Finan began to work on the brakes soon after it started down the hill. Schroll was sitting in the extreme end on the right side of the car, talking to the conductor, who was standing on the inside of the car, with his back against the rear door. Schroll did not notice the excessive speed of the car until it was within about 200 feet of the curve, and did not see the motorman as he did not look in that direction. Wessling, the conductor, had gone inside the car to arrange the ventilators; and, when asked whether he could see the motorman, he replied that he could not, because the blinds were down. There was evidence to the effect that the car wheels were cracked, that the flanges were cracked over an inch or so, and pieces as big as one's thumb were broken out of the rim of the wheels; that the brake shoes were worn down to half their original thickness, and that a new shoe would stop a car with ease, while an old shoe required more effort and strength. This with proof of the Ohio law, and the mortality tables, constituted the substance of appellee's proof.

Appellant submitted evidence tending to show that the wheels were sound, except some chips on the inner side of the flanges of the rear wheel, which did not come in contact with the rail, that the front wheels were in perfect condition, and that the front wheels first left the track. By its master mechanic appellant further showed that the front wheels were comparatively new, having been put on in May, 1910, and that they first left the track. There was other evidence tending to show the good condition of the brake shoes and the car immediately before the accident.

As grounds for a reversal, appellant assigns the following errors: (1) That the act of Congress approved April 22, 1908, and commonly known as the "Employer's Liability Act," superseded the Ohio statute under which the case was actually tried, and that the court erred in overruling appellant's motion to require appellee to elect which cause of action she would prosecute, and in overruling appellant's motion to strike from the petition the paragraph which set up and relied upon the Ohio statute; (2) that the lower court erred in permitting the contradiction of the witness Wessling; and (3) in refusing to permit the jury to inspect the wheels of the car.

1. The Employer's Liability Act was passed by Congress in the exercise of its constitutional authority to regulate interstate commerce. It provides that every common carrier by railroad while engaged in commerce between the states shall be liable in damages to any person suffering injury while employed by such carrier in such commerce, where injury or death results from any defect or insufficiency due to its negligence in its cars, engines, appliances, machinery, tracks, roadbed, work boats, wharves, or other equipment. The constitutionality of that act has been sustained by the Supreme Court of the United States in Mondou v. N. Y., N.H. & H. R. Co., 223 U.S. 1, 32 S.Ct. 169, 56 L.Ed. 327, 38 L.R.A. (N. S.) 44, M., K. & T. Ry. Co. v. Wulf, 226 U.S. 570, 33 S.Ct. 135, 57 L.Ed. 355, and Michigan Central R. R. Co. v. Vreeland, 227 U.S. 59, 33 S.Ct. 192, 57 L.Ed. 417. In these cases it was held that the effect of the Employer's Liability Act was to supersede the state laws upon the subject; and, that being true, there can be no doubt that the Employer's Liability Act of 1908 superseded all other statutes, as well as the common law, in so far as interstate commerce was involved, and that the Ohio act pleaded and relied upon in this case, and under which this case was tried and the instructions were drawn, was abrogated by said federal statute, in so far as this case was concerned. The petition shows that appellant is an interstate carrier of passengers, and that Finan was injured while engaged in appellant's business as an interstate carrier. Any recovery, therefore, which appellee would be entitled to in this action, must be regulated by and be in conformity with the provisions of the act of Congress. It is admitted that the case was tried under the Ohio statute, and that the rulings of the court upon the admission of evidence, and in instructing the jury, were made under the Ohio statute.

That statute makes the mere proof of the existence of defects in appliances prima facie evidence of negligence; and, that having been shown, it throws the burden of disproving negligence upon the employer. The first...