Wasioto & B.M.R. Co. v. Hall

• Decision Date: 19 January 1916
• Citation: 167 Ky. 819,181 S.W. 629
• Parties: WASIOTO & B. M. R. CO. v. HALL.
• Court: Kentucky Court of Appeals

181 S.W. 629

167 Ky. 819

WASIOTO & B. M. R. CO. v. HALL.

Court of Appeals of Kentucky.

January 19, 1916

Appeal from Circuit Court, Harlan County.

Action by Henry Hall against the Wasioto & Black Mountain Railroad Company. Judgment for plaintiff, and defendant appeals. Reversed, and cause remanded for a new trial.

William Low, of Pineville, and Benj. D. Warfield, of Louisville, for appellant.

Brock &amp Brock and G. G. Rawlings, all of Harlan, for appellee.

CLAY C.

Alleging that he was struck by an aligning bar, which, through the gross negligence of defendant's foreman, was improperly loaded on a hand car, and thereby injured, plaintiff, Henry Hall, brought this action against defendant, Wasioto & Black Mountain Railroad Company, to recover damages for personal injuries. The trial before a jury resulted in a verdict and judgment in his favor for $4,000. The defendant appeals.

The first ground urged for a reversal is the failure of the trial court to give a peremptory instruction in favor of defendant.

The determination of this question requires a short statement of the evidence. According to the evidence for plaintiff, he was a section hand in defendant's employ. On the occasion of his injury he mounted a hand car just as it began to move. He took a position on the front end of the car and began to operate the lever with his face to the rear. After proceeding about a mile the aligning bar slipped from the car and struck a tie. One end of the bar struck plaintiff in the breast and threw him from the car. It was customary to place the aligning bars, which were about 5 feet in length, flat on the car, and it was the duty of the foreman to see that the cars were properly loaded. On the occasion in question a number of overall coats and rain coats were piled up on the car about 18 inches high. One end of the aligning bar which struck plaintiff was set on these coats, thereby elevating the bar at that end and causing it to slide. Though plaintiff says that he could have seen the bar if he had looked, he claims that he did not look because his mind was on the operation of the car. On cross-examination it developed that one end of the bar was near his feet, and if he had used his eyes he could have seen the bar. Plaintiff further states that the foreman was standing right over the bar, and, not being engaged in other work, there was nothing to prevent him from seeing it. John Tie states that he helped load the car. The proper way to load the aligning bars was to place them lengthwise of the car on each side. On the occasion of the injury two aligning bars were placed on the car. One of them was crooked, and this is the one he loaded by placing it lengthwise of the car on the bottom. He could not say whether the other one was crooked or not. Just after the accident the crooked bar was lying on the railroad track. In his opinion this was the bar he loaded, though he could not be certain in regard to that fact. At the time of the accident there were six men on the car. He did not see anything that could have knocked plaintiff off; was facing plaintiff, and, when plaintiff fell, the car struck his left side first. On cross-examination he stated that he never saw any aligning bar lying on top of any coats. The bar that he loaded was placed on the left side, and that was the side plaintiff was standing on. For the company the foreman, R. J. Carmony testified that he was present when the aligning bars were loaded, and they were placed in the usual position. He did not see any bar on the coats. Just before plaintiff fell he noticed plaintiff stooping over, and he then fell off the car. At the time plaintiff had hold of the handle bar with one hand. After the accident the bent aligning bar was found near the track. He did not see the aligning bar slip and strike plaintiff. Mack Slusher testified that the car was loaded in the usual way. He never saw any aligning bar loaded on the top of any coats. He was pulling on the same lever that plaintiff was working on, and was facing plaintiff. He never saw any aligning bar fall off and strike plaintiff. After the accident he saw a crooked aligning bar lying on the track. Troy Wallace was present and remembered the accident. The tools on the car were properly loaded. The crooked aligning bar got around on the top of the tools because of its being crooked. At the time of the accident he had his face to the front. He never saw the aligning bar slide off the car. On cross-examination he stated that he did not know whether the crooked aligning bar was on top of any coats or not. Kener Madden testified that the first thing he knew of the accident he saw plaintiff fall, and an aligning bar fell with him. He noticed the aligning bar just before the accident. It had worked a little over to the front end. He saw plaintiff trying to move the bar with his foot. About that time plaintiff fel...