Truesdell v. Chesapeake & O. Ry. Co.

• Decision Date: 23 September 1914
• Citation: 169 S.W. 471,159 Ky. 718
• Parties: TRUESDELL v. CHESAPEAKE & O. RY. CO.
• Court: Kentucky Court of Appeals

169 S.W. 471

159 Ky. 718

TRUESDELL v. CHESAPEAKE & O. RY. CO.

Court of Appeals of Kentucky.

September 23, 1914

Appeal from Circuit Court, Lewis County.

Action by J. L. Truesdell against the Chesapeake & Ohio Railway Company. Judgment for defendant, and plaintiff appeals. Affirmed.

A. D Cole, of Maysville, for appellant.

Worthington Cochran & Browning, of Maysville, for appellee.

CLAY C.

In this action for damages by plaintiff, J. L. Truesdell, against defendant, Chesapeake & Ohio Railway Company, the trial court, at the conclusion of the evidence, directed a verdict in favor of the defendant. Plaintiff appeals.

Plaintiff was a section laborer, and had been so employed by the defendant for about two months prior to the accident, which occurred on November 20, 1911. On that day the section crew of which plaintiff was a member, and which consisted of a foreman and eight or nine laborers, was engaged in removing 60-pound and substituting 100-pound rails in defendant's switch track near the South Manchester depot in Lewis county. A few days before the accident, the heavier rails had been deposited near the tracks. One of these rails was carried to the tracks and laid down. The second rail was then carried to the tracks. The foreman in charge of the work was present. When the crew reached the track, some one of the crew gave the signal to throw the rail. When the rail was thrown, it rebounded and struck and mashed plaintiff's toes. There was some evidence to the effect that the rail brace, which was used for the purpose of keeping the 60-pound rail in position, was not removed when the 60-pound rail was taken up, and that the heavier rail, when thrown, struck the rail brace, and this caused the rail to rebound.

In addition to the foregoing facts, there was evidence to the effect that the safer way to handle rails was by the use of rail tongs. It does not appear that such tongs were used during the time of plaintiff's employment. They had been used on that section, however, at one time for a short while. The usual and customary way of moving rails from one place to another was that adopted in handling the rail in question. The section crew would pick it up with their hands, carry it to the place where it was needed, and then, at the word of some member of the crew, drop it on the ground.

Defendant was engaged in interstate commerce, and plaintiff was at work preparing the tracks for use in interstate commerce.

The failure of the defendant to furnish tongs for handling the rails cannot, under the facts of this case, be regarded as negligence. The master is not bound to provide the very best implements or means which can be procured, or those which are absolutely the most convenient and safe. His duty is sufficiently discharged by providing implements or means which are reasonably safe for those exercising ordinary care for their own safety. New Galt...