October 1, 2012

Shadoan's Adm'r v. Cincinnati, N. O. & T. P R. Co., Pulaski, 1904

SHADOAN'S ADM'R v. CINCINNATI, N. O. & T. P. R. CO.

COURT OF APPEALS OF KENTUCKY

82 S.W. 567; 1904 Ky. LEXIS 308; 26 Ky. L. Rptr. 828

October 27, 1904, Decided

PRIOR HISTORY:  [**1]  Appeal from Circuit Court, Pulaski County. "Not to be officially reported." Action by J. L. Shadoan's administrator against the Cincinnati, New Orleans & Texas Pacific Railroad Company. From a judgment in favor of defendant, plaintiff appeals.

DISPOSITION: Affirmed.

COUNSEL: W. A. Morrow and J. W. Colyar, for appellant.

O. H. Waddle and John Galvin, for appellee.

JUDGES: BARKER, J.

OPINION BY: BARKER

OPINION

 [*567]  BARKER, J. - J. L. Shadoan was a brakeman in the employ of the Cincinnati, New Orleans & Texas Pacific Railroad Company, a corporation operating a railroad through the state of Kentucky. At the time of the injury complained of in this action he was first brakeman on No. 38, which was a freight train running north. At Whitley, Ky., it met No. 35, a freight train running south. These two trains stopped under orders at the point of meeting, so as to allow No. 31 to pass them. No. 35 was on the siding and No. 38 on the main track, the switch of the siding being open, and the two trains stood facing each other at from 30 to 50 yards apart. The road at this point was down grade looking north, No. 38 being on the higher elevation. The day being warm, the entire crew from each train alighted for the purpose of rest and recreation while waiting  [**2] for No. 31. Appellant's decedent had gone forward and thrown open the switch of the siding, and then he seems to have climbed into the cab of No. 35, in order (it is said) to obtain a drink of ice water, there being none on his train. At this time, whether from a defect in the throttle of the engine of No. 38, or because the air had so leaked from the air brake as to release them from the wheels, train No. 38 suddenly started and rolled down against No. 35 with such force as to crush the decedent between one of the cars and the tender of the engine of the latter train, inflicting such injuries as caused his death within an hour or two thereafter. To recover damages for this injury this action was instituted, it being alleged in the petition that it was caused by the gross negligence of appellee's agents and servants. On the trial of the case, at the close of appellant's (plaintiff's) evidence, the court sustained the motion of appellee for a peremptory instruction in its favor.

Assuming that the collision of the trains was the result of the negligence of appellee's servants, we think the trial court ruled correctly in granting the peremptory instruction complained of. Appellant's decedent  [**3] was on train No. 35 for his own convenience, and not in the discharge of any duty to appellee. In the case of L. & N. R. Co. v. Hocker, 111 Ky. 707, 64 S. W. 638, 65 S. W. 119, 23 Ky. L. Rptr. 982, 23 Ky. L. Rptr. 1274, one of the employes of the railroad company, for his own convenience, had gone between cars in its yard, where he was injured (it is alleged) by the gross negligence of its employes in backing a train against the cars between which he was standing. In the opinion it is said: "It seems to us from the undisputed facts of this case that as appellee was not in his place of business, or in the discharge of any duty imposed upon him by his employment the appellant company owed him no duty except to avoid injuring him after it had discovered his perilous position." This principle is conclusive of the case at bar, and the judgment is affirmed.

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