Stevenson v. Illinois Cent. R. Co.

• Decision Date: 24 February 1914
• Citation: 157 Ky. 561,163 S.W. 747
• Parties: STEVENSON v. ILLINOIS CENT. R. CO. et al.
• Court: Kentucky Court of Appeals

163 S.W. 747

157 Ky. 561

STEVENSON v. ILLINOIS CENT. R. CO. et al.

Court of Appeals of Kentucky.

February 24, 1914

Appeal from Circuit Court, Grayson County.

Action by Charles W. Stevenson against the Illinois Central Railroad Company and another. From a judgment for defendants plaintiff appeals. Affirmed.

J. C Graham, of Leitchfield, and O'Doherty & Yonts, of Louisville, for appellant.

Trabue Doolan & Cox, of Louisville, L. A. Faurest, of Elizabethtown Robert T. Caldwell, of Louisville, and R. V. Fletcher, of Chicago, Ill., for appellees.

HANNAH J.

Charles W. Stevenson sued the Illinois Central Railroad Company, the Chicago, St. Louis & New Orleans Railroad Company, and Robert Duncan, to recover damages for injuries that necessitated the amputation of his leg. Upon the trial of the case, the plaintiff, on his own motion, dismissed his action against the second-named railroad company, and the jury returned a verdict in favor of the other two defendants, and plaintiff appeals.

Plaintiff received his injuries on February 19, 1910. At that time a spur track extended from the main line of the Illinois Central Railroad Company to the plant of B. F. Avery & Sons, then in process of construction, near the city limits of Louisville. This spur track crossed the county road, called Seventh Street Road, a short distance beyond the city limits. The Avery plant lay immediately east of this crossing, while the main line of the railroad was some distance to the west thereof. One of defendant company's switch engines had some switching to do at the Avery plant, and this engine, headed east, came along on the spur track, pushing two freight cars in front of it, and stopped just west of where this spur track crossed over the Seventh Street Road. The conductor sent ahead to the crossing a couple of men to clean out the snow from the space between the rails upon which the wheels of the train ran and the guard rails, and also to clean out the snow from a switch that lay just east of the crossing. After this work was completed, the engine and cars were run over the crossing and into the Avery plant, and there coupled on to nine additional cars. The engine was then backed out of the plant and over the crossing of the Seventh Street Road, pulling the eleven cars, at a speed of three or four miles per hour. Plaintiff, a young man about 18 years of age, left his brother's home on the Seventh Street Road, in company with a companion named Virgil Miller, and, coming north on said Seventh Street Road, had reached the south side of the crossing in question. After the engine and several of the cars had passed over the crossing, the plaintiff either fell against a car, as he contends, and in order to avert injury to himself caught to the ladder on the car, and was carried several feet and received the injuries complained of, or he voluntarily, for the purpose of riding on the train, attempted to get on the car, as defendant company contends, and was thrown under it and injured.

The evidence bearing on the main issues is sharply conflicting. Plaintiff himself testified as follows: "Well, Virgil Miller and I started from home, and, when we got to the railroad track, there was a switch engine pulling some cars out of the Avery plant, and, when I got there, I walked up in the distance of three or four feet of the train. And there was a snow bank there, that the snow had blown and covered over with snow, and they had shoveled it up off of the track; and it was loose, and gave way under my feet, and throwed me just a tilt toward the train; and in falling, I grabbed hold of some part of the car, ladder or something (I didn't have time to tell), and then it jerked me a little distance the side of the road, eight or ten feet, and throwed me against a post; and this post broke my hold and throwed me down under the train, and then it dragged me by my leg a distance of 60 or 70 feet, and then it run up on my leg."

Miller, plaintiff's companion, testified that, when they got to the crossing, there was a cut of cars coming down, and they stopped; that plaintiff stopped about three or four feet from the track, and the snow gave way from under him, and he slipped and caught some part of the train to keep from falling against it; and it threw him against the post; and that threw him under the train.

A witness named Dipholz testified that he was going to the city in a wagon, and came to this crossing as the train was passing over it; that he saw appellant pass his wagon right in front of him and stumble on the snow, and as he stumbled, he went right on to the post. On cross-examination, this witness testified as follows: "Q. Did he appear to be going in the direction of the train when he stumbled? A. I don't know. Q. At any rate, he was walking--he was not standing still? A. I believe he stopped when he stumbled. Q. But he was walking when he stumbled? A. Yes."

It was shown by defendant company that, when plaintiff was injured, he was first carried to a shanty near by, and, while waiting there for a conveyance, he stated to two members of the switching crew that he was trying to get on the car to ride over to the plant of the North Vernon Lumber Company.

Plaintiff, himself, testified that he was on his way to the office of that company, with his companion, Virgil Miller, for the purpose of collecting their wages; but that it was their intention to go first to Miller's home, and from there to the lumber company's office; and that they were merely waiting for the cars to pass over the crossing so that they might continue north on Seventh Street Road on their way to Miller's home. It was shown in evidence that the plant of the North Vernon Lumber Company was on defendant company's line, and that the switch engine mentioned, in going from the Avery plant back to the yards of the railroad company, would pass by the plant of the said lumber company.

It was shown by the conductor of the switching crew that plaintiff was standing at the crossing when they arrived there, and three others of the crew testified that they saw him standing there while the snow was being cleaned out from between the rails. During all this time, the crossing was unobstructed, and, after the snow was cleaned out and the train had proceeded over the crossing and into the Avery plant, the crossing was again unobstructed. However, plaintiff's brother testified that plaintiff left his home about 10 or 15 minutes before he received the news of plaintiff's injury; and, if this be true, plaintiff could not have been at the crossing during the time testified to by these members of the switching crew, as the work of cleaning the tracks consumed about 40 minutes.

As to the embankment of snow, plaintiff's evidence tended to show that the bank of snow, which he claimed gave way and threw him against the train, was deposited there by the men who cleaned out the space between the two rails, the space where the wheel flanges run, so that the switch engine could get over the crossing as heretofore stated. Plaintiff also introduced a witness who testified that he saw some men shoveling snow off of that crossing the evening before; but that witness stated that he did not know whether the men he saw were employés of the railroad company or of the Westlake Construction Company, which was building the Avery plant; that employés of the construction company cleaned off that crossing part of the time.

Defendant company introduced testimony showing that none of its employés were at work there the evening before plaintiff received his injuries; and the men who cleaned out the space between the rails where the wheel flanges run testified that they did nothing but remove the snow from that space the quantity of which would not create a deposit of considerable size; and further stated that this snow was thrown by them on the north side of the crossing.

Under the evidence offered by the plaintiff, without the contradictory evidence offered by defendant, the jury, under the instructions given, would have been authorized and unquestionably would have found for plaintiff;...