Standard Oil Co. v. Titus
| Decision Date | 26 March 1920 |
| Citation | 187 Ky. 560,219 S.W. 1077 |
| Parties | STANDARD OIL CO. v. TITUS. |
| Court | Kentucky Court of Appeals |
Appeal from Circuit Court, Jefferson County, Common Pleas Branch Third Division.
Action by Willard S. Titus against the Standard Oil Company. Judgment for plaintiff, and defendant appeals. Affirmed.
Humphrey Crawford, Middleton & Humphrey, of Louisville, for appellant.
John L Sullivan, A. Scott Bullitt, and James Hemphill, all of Louisville, for appellee.
In a suit for personal injuries, plaintiff, Willard S. Titus recovered of the defendant, the Standard Oil Company, a verdict and judgment for $15,200. The defendant appeals.
At the time of the accident, which occurred on March 16, 1917, the Kentucky & Indiana Terminal Railroad Company was engaged in the business of switching cars onto the private tracks of various industries surrounding the city of Louisville, and plaintiff, an experienced railroad man, was the engine foreman in charge of its switching crew. Cars consigned to the defendant were placed on its track in accordance with orders put into a small box by Droege, one of defendant's employés. On reaching the premises on the morning of the accident, plaintiff found the following order in the box:
According to plaintiff's evidence, he reached defendant's premises about 4:30 o'clock in the morning. It was drizzling rain and was still dark. At plaintiff's direction the engineer slowly backed the cut of cars over defendant's switch. At that time the switch track was being extended from day to day, and plaintiff knew the track had not been ballasted, that the ties were simply laid on the surface of the ground, and that the ground was slippery and muddy. While the cars were being backed, two wheels of the rear truck of the leading car ran off the track for a short distance, leaving the wheels on the ties with the rear wheel of the truck near and in line with the rail from which it had dropped. As soon as the derailment occurred plaintiff got off the car on which he was riding, and went to the end of the track. He and his rear man, Howerton, found that the derailment had taken place at a point where two rails joined and that the last rail on the south was pushed over a fraction of an inch, or just enough to allow the wheels to be pulled back on the track the way they came off. Otherwise the last rail was in alignment with the rest of the track. On looking under the car plaintiff and Howerton found that the only wheels that were off the track were the two wheels of the rear truck on the south side, and these two wheels were still on the ties. All the other wheels, including those on the north side of the car, remained on the track. The slight spring in the south rail was no indication that anything was wrong with the track, or that the rail itself was unspiked. The derailment was only a slight one, and such as frequently occurs. The derailment occurred in a cut about five feet deep. After observing the conditions plaintiff directed Howerton to get on the bank and signal the engineer to go ahead. At the same time plaintiff took a position a few feet behind the rear car and between the rails. When the power was applied the last rail on the south side swung towards the north, crushing plaintiff's leg so severely that it had to be amputated eight inches below the knee. The next morning it was discovered that the rail which caused the injury had never been spiked to the ties. Plaintiff and Howerton both say they never knew that the rail was unspiked, and there was nothing in the surrounding conditions to warn them of that fact. Plaintiff says it was his duty under the circumstances to rerail the car without sending for a wrecking crew, and he and his witnesses say that the method adopted was a safe one. On the other hand, defendant's witnesses claim that the loose rail was not a part of the track proper, but was a rail which had been left in the middle of the track the evening before, and had not been lined up. They also say that the...
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