Vissman v. Southern Ry. Co.

• Decision Date: 15 November 1905
• Citation: 89 S.W. 502
• Parties: VISSMAN v. SOUTHERN RY. CO.
• Court: Kentucky Court of Appeals

89 S.W. 502

VISSMAN v. SOUTHERN RY. CO.

Court of Appeals of Kentucky.

November 15, 1905

Appeal from Circuit Court, Jefferson County, Common Pleas Branch Third Division.

"Not to be officially reported."

Action by John F. Vissman against the Southern Railway Company. From a judgment in favor of defendant, plaintiff appeals Affirmed.

Benjamin F. Gardner, for appellant.

Humphrey Hines & Humphrey, for appellee.

SETTLE J.

This is an appeal from a judgment of the circuit court, entered upon a verdict in favor of appellee, which was returned by the jury in obedience to a peremptory instruction from the court. Appellant complains of the giving of the peremptory instruction and also of certain rulings of the trial judge relating to the exclusion of testimony.

The facts set forth in the petition as constituting appellant's cause of action were in substance that while in appellee's service as fireman on a frieght train he attempted to replenish the fires of the engine with coal from the tender, and encountered a large lump of what he believed to be coal that blocked the opening to the tender, which he undertook to break with a pick in order to remove it and free the entrance, but upon striking it with the pick for that purpose a piece thereof struck him in the eye, causing him great suffering and finally the loss of the eye. It was also averred that the lump was of "coal, rock, and slate," unsuitable for use, which was at the time unknown to him, but was known, or by the exercise of ordinary care could have been known, to appellee, and that in furnishing him such material as fuel for the engine appellee was guilty of gross negligence which caused his injuries. The answer contained a general denial of the averments of the petition as to the nature and extent of appellant's injuries and the manner of his receiving same, specifically denied the acts of negligence attributed to appellee, and averred contributory negligence on the part of appellant. A reply was filed, traversing the plea of contributory negligence, and upon the issues thus formed the case went to trial.

Appellant was the only witness who testified as to the character and appearance of the lump in the attempt to break which his eye was destroyed. No other witness saw it. According to his testimony the lump looked like a piece of coal, and until it was broken no one could have told that it was anything but coal. He struck it several times with the pick in trying to break it, and one of the blows caused a piece of the coal or slack to fly up and strike him in the eye. He also testified that during his three years of service as fireman he often had to break coal for the firebox of the engine, and in fact a pick was kept on the engine for the use of the fireman in breaking coal. He further testified that when he entered the service of appellee as fireman it was using for its engines what was known as "Running Fork Coal," but about a year before the injury to his eye it commenced to use for that purpose "Mine Run Coal," both being unscreened coal, but that the Mine Run coal was of an inferior quality, in that it did not make steam as well as the Running Fork coal, of which he had some time before the accident complained to appellee. Appellant and his other witnesses. Davis, Wright, and Burke, testified that unscreened, or what is known as "Mine Run," coal is commonly used for firing engines. All concurred in the statement that the breaking of lumps of the best quality of coal, as well as that of inferior quality, is usually attended with the flying upward and around of small pieces of the coal, which may, and frequently do, strike the person doing the breaking, and that appellant's injury was as liable to have occurred from the breaking of a large lump of good coal, as from the breaking of the lump of coal, slate, and rock in question. It was also shown by the testimony of the expert witnesses, Wright and Burke, that no coal is absolutely pure, but that it all contains foreign substances.

It was not averred in the petition that the Mine Run coal used by appellee at the time of the accident for its engines was unsafe or dangerous to the firearm or others handling it, or that it was more likely to cause such an accident as the one complained of than any other kind of coal. The complaint in the petition was its unsuitableness for the purpose for which it was used; that is to say, it was unsuitable, according to appellant's own testimony, because it did not make as much steam as some other coal, for upon that ground alone he had complained of it to the appellee. Appellant admitted when testifying, that the slate or rock in the lump by which he was injured was so completely covered with a layer of...