Williams' Adm'r v. Chesapeake & O. Ry. Co.

• Decision Date: 21 June 1918
• Citation: 181 Ky. 313,204 S.W. 292
• Parties: WILLIAMS' ADM'R v. CHESAPEAKE & O. RY. CO.
• Court: Kentucky Court of Appeals

204 S.W. 292

181 Ky. 313

WILLIAMS' ADM'R v. CHESAPEAKE & O. RY. CO.

Court of Appeals of Kentucky.

June 21, 1918

Appeal from Circuit Court, Greenup County.

Suit by Walter Frazier, as administrator of Kaner Williams, deceased against the Chesapeake & Ohio Railway Company. Judgment for defendant, and plaintiff appeals. Reversed and remanded for a new trial.

E. E Fullerton, of Greenup, and S. S. Willis and R. D. Davis, both of Ashland, for appellant.

Worthington Cochran & Browning, of Maysville, and Prichard & Putnam, of Ashland, for appellee.

CLAY C.

Walter Frazier, as administrator of Kaner Williams, deceased brought this suit under the federal Employers' Liability Act against the Chesapeake & Ohio Railway Company to recover damages for his death. At the conclusion of the evidence, the trial court directed a verdict in favor of the defendant, and plaintiff appeals.

At the time of his death, Williams was a member of a section gang engaged in repairing and maintaining the tracks of defendant, an interstate carrier. He was 23 years of age and unmarried. His father and mother, who were very poor, lived on a small farm with their infant children, and he regularly contributed to their support.

Williams was killed under the following circumstances: On the morning of the accident, he and other members of the section crew met at Frost, a small station. They then rode a hand car to a point about one-half mile west of Frost. There they removed the hand car from the track, and unloaded their tools preparatory to the work of laying some rails. About that time train No. 5, a fast west-bound passenger train, came along. S. F. Reed, the foreman of the section gang, was on this train. The nearest stop for the train was at South Portsmouth, a few miles west from where the section gang was located. As the train passed, Reed threw off a note directing the men to take the hand car and meet him at South Portsmouth. Thereupon Williams and three other members of the section gang placed the hand car upon the track and started toward South Portsmouth. Just as they reached a point near the crossing at Taylors, they were overtaken by extra work train No. 825, consisting of an engine and caboose. The hand car was then moving at from 12 to 15 miles an hour, while the extra train was going much faster. Though it was clear elsewhere, the track at Taylors was enveloped in a very dense fog. The three other men on the hand car with Williams escaped injury, but Williams was killed by the collision. The extra started from Russell, and before leaving the engineer received an order to be on the lookout for the section gang between Siloam and Frost. On reaching Siloam, the engineer maintained a lookout, reduced the speed of the train, and gave the usual signals until the train passed the members of the section gang about one-half mile west of Frost. After passing these men, the engineer, who did not know that Williams and his fellow workmen had gone to South Portsmouth, increased his speed. On account of the fog at Taylors, he could not see the hand car until the train ran right upon it, and for the same reason those on the hand car could not see the approaching train. The headlight on the engine was not burning, and, with the exception of the sounding of the whistle when the engine was about three-quarters of a mile from Taylors, no signal of the approach of the train was given.

The first question to be determined is whether Williams was employed in interstate commerce at the time of the accident. As before stated, he was a member of a section crew whose duty it was to repair and maintain the company's tracks. For this purpose the crew had ridden to a point about one-half mile west of Frost, and were preparing to begin the work of laying rails when they received the foreman's order to meet him at South Portsmouth. When the accident occurred they were en route to South Portsmouth. In making the trip in obedience to the order of the foreman, Williams was discharging a duty of his employment. Like his trip from Frost to the point where he received the order, his trip to South Portsmouth was so directly and immediately connected with the repair and maintenance of the track, an instrument of interstate commerce, as to be a part of that work or a necessary incident thereto. We therefore conclude that deceased was employed in "interstate commerce" at the time of the accident. Erie R. Co. v. Winfield, 244 U.S. 170, 37 S.Ct. 556, 61 L.Ed. 1057; North Carolina R. Co. v. Zachary, 232 U.S. 248, 34 S.Ct. 305, 58 L.Ed. 591, Ann.Cas. 1914C, 159; Lamphere v. Oregon R. & Nav. Co., 196 F. 336, 116 C.C.A. 156, 47 L.R.A. (N. S.) 1.

There was sufficient evidence of the dependency of the parents of the deceased, and of contributions made by him to their support, to make it a question for the jury whether they were deprived of pecuniary benefits by his death.

It remains to...