Ward v. Pullman Co.

• Decision Date: 31 May 1910
• Parties: WARD v. PULLMAN CO.
• Court: Kentucky Court of Appeals

128 S.W. 606

138 Ky. 554

WARD v. PULLMAN CO.

Court of Appeals of Kentucky.

May 31, 1910

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

"To be officially reported."

Action by Samuel J. Ward against the Pullman Company. There was a directed verdict for defendant, and plaintiff appeals. Reversed and remanded.

Myers &amp Howard, for appellant.

Martin M. Durrett, for appellee.

SETTLE J.

Appellant brought this action to recover of the Cincinnati, New Orleans & Texas Pacific Railway Company and the appellee, the Pullman Company, damages for being deprived of the services of his son, Joel Ward, during the latter's minority, resulting from the loss of both of his feet and a part of his legs alleged to have been caused by the gross negligence of the two corporations named; the Pullman Company in constructing and furnishing the railway company for its use, and the railway company in requiring appellant's son as a brakeman in its employ to operate a car known as a "gondola," containing a defective and dangerous brake which broke in its use by him, thereby causing him to fall to the railroad track in front of the moving gondola and receive the injuries complained of. Appellant dismissed the action in the court below as to the Cincinnati, New Orleans &amp Texas Pacific Railway Company, but continued its prosecution as to the appellee, Pullman Company, and on the trial of the case as to the latter company the jury, in obedience to a peremptory instruction from the court, returned a verdict in favor of the Pullman Company, upon which judgment was duly entered. From that judgment and the refusal of the circuit court to grant him a new trial, appellant prosecutes this appeal.

According to the evidence the car in question was a new one constructed by the Pullman Company for the use of the railway company and appellant's son, who was a brakeman in the railway company's employ, was directed by the yard foreman to run it into a switch in the Ludlow depot yard from which it was to be attached to a train for its initial trip. It was further shown by the evidence that appellant's son by command of the foreman got upon the car for the purpose of controlling its movements with the brake downgrade; and that, upon his taking hold of and trying to turn the brake, the staff broke at a point 2 1/2 feet below the staff wheel and 6 inches above the rachet, which caused appellant's son to fall on the track in front of the moving car in such a manner that its wheels caught and mangled his legs to such an extent as to necessitate the amputation of both feet.

It was contended by appellant and indisputably established by the evidence that the brake staff at the point where it broke had never been properly welded by appellee's servants, that there was an aperture or crack from a sixteenth to an eighth of an inch in width around the weld, and that the aperture or...