Wiley v. Cincinnati, N.O. & T.P. Ry. Co.

• Decision Date: 27 November 1914
• Citation: 170 S.W. 652,161 Ky. 305
• Parties: WILEY v. CINCINNATI, N. O. & T. P. RY. CO.
• Court: Kentucky Court of Appeals

170 S.W. 652

161 Ky. 305

WILEY v. CINCINNATI, N. O. & T. P. RY. CO.

Court of Appeals of Kentucky.

November 27, 1914

Appeal from Circuit Court, Fayette County.

Action by Ed Wiley against the Cincinnati, New Orleans & Texas Pacific Railway Company. Judgment for defendant, and plaintiff appeals. Affirmed.

Robert B. Franklin and Robt. C. Talbott, both of Lexington, for appellant.

R. A Thornton, of Lexington, and John Galvin, of Cincinnati, Ohio for appellee.

CARROLL J.

The appellant, who will be called the plaintiff, brought this suit against the appellee as defendant to recover damages for personal injuries sustained, as he averred, on account of its negligence. When he sustained the injuries complained of he was attempting to make a coupling with his foot, which slipped and caught in the coupling. The lower court sustained a demurrer to the petition as amended; so that the only question for our decision is: Did the pleading state a cause of action?

The petition averred that the plaintiff was in the employment of the defendant as a yard brakeman or switchman, and while in the discharge of his duties in the yard at Lexington undertook to couple one of the defendant's engines to a freight car standing on a track in the yard--

"by the use of couplers designed to be automatic, consisting of drawbars on the said engine and car, which were intended to be in line with each other and to come together and fit one into the other, and to fasten together automatically when brought together by the engine backing up to said car; that the defendant negligently and carelessly failed to furnish the plaintiff couplers and drawbars suited and fit for coupling automatically said engine and said cars; that the couplers and drawbars aforesaid were unsuited and unfit for the purpose of coupling automatically said engine to said car, because the drawbar on the engine was out of line laterally and hard to get in line with the drawbar on the car, so that the said drawbars did not and would not meet in such manner as to couple automatically when said engine backed up to said car; that the said drawbars could not couple until the drawbar on the engine was pushed in line with the drawbar on the car; that said drawbar on the engine was hard to push in line with the drawbar on the car, so that the drawbars could and would couple automatically when said engine backed up to said car; that the drawbar on the engine required the use of much force on the part of the plaintiff to get it in line with the drawbar on the car, so that the said engine and car could and would couple, whereas suitable and fit drawbars are easily pushed in line with each other when out of line; that the defendant knew, or with the exercise of ordinary care could have known, that the said couplers and drawbars were unsuited and unfit to couple automatically said engine to said car, and of the condition of the drawbar on said engine, in time to have avoided the injury to plaintiff herein complained of, by the exercise of ordinary care; that in order to effect a coupling when the defendant's agents and servants backed said engine up to said car to be coupled therewith, and in order to enable them to couple, the plaintiff first endeavored to get the drawbar on the engine in line by the use of his hands, but was unable so to do, and, having no other means to get the said drawbar on the engine in line, the plaintiff pushed the drawbar on the engine from its lateral position to a straight position or in line, with his foot, without realizing and without knowing the danger of pushing the said drawbar in line with his foot, and, while using ordinary care for his own safety, his foot slipped and was caught in and between the knuckles and jaws of the said drawbars and crushed."

In the amended petition it was averred that:

"There was no rule of the defendant company known to the plaintiff governing the conduct of its brakeman with respect to coupling cars whose drawbars might be out of line, or forbidding the use of the foot in pushing the drawbars into line, and if there was, in fact, any rule forbidding the use of the foot therefor, it was habitually, and with the knowledge of the company, ignored by its brakemen before and at the time of the injuries herein complained of, and that before and at the time of the injuries herein complained of it was the common practice of the brakemen of the defendant company, and well known and acquiesced in by their superiors, to use the foot in pushing the drawbars in line as the plaintiff undertook to do on the occasion set out in the petition; that the drawbar on the engine was defective in being and staying out of line, and defective in being difficult to push into line; that the said drawbar on the engine was unsuited for coupling said engine to a car in that the drawbar was out of line, and in that the drawbar required much force to push it into line; that, while the plaintiff saw that the drawbar was out of line, he did not know or realize the amount of force necessary to push it into line, and because of the great and unexpected resistance of the drawbar, the force which he exercised through his foot, and which ordinarily would have moved the drawbar into line, caused his foot to glance off and slip and be caught; that the plaintiff did not know or anticipate that the drawbar would offer such resistance as it did, or that the force applied to it would result in his foot slipping rather than moving the drawbar into line; that the plaintiff at the time was exercising ordinary care for his own safety

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