October 10, 2012

Ward v. L. & N. R. Co., Laurel, 1901


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65 S.W. 2; 1901 Ky. LEXIS 678; 23 Ky. L. Rptr. 1326

November 21, 1901, Decided


Appeal from circuit court, Laurel county.
"Not to be officially reported."

Action by W. G. Ward against the Louisville & Nashville Railroad Company to recover damages for personal injuries. Judgment for defendant, and plaintiff appeals, Reversed.

COUNSEL: Willis & Willis, for appellant.

J. W. Alcorn, J. A. Craft, and Edward W. Hines, for appellee.




 [*3]  HOBSON, J.

Appellant, W. G. Ward, was a section hand on appellee's road. The section boss, with his crew of eight men, was engaged in remodeling a caboose for the purpose of using it as a tool house. The caboose had been wrecked, and parts of it were splintered and shivered. When they finished work for the evening, the foreman ordered the men to gather up the remnants which had been taken from the caboose, and put them on the hand car, saying that this would make a fine lot of kindling. The hand car was about five feet long and three or four feet wide, propelled by a lever which worked a large cogwheel that ran in a smaller cogwheel, the axis of which was the front axle of the car. The lever was arranged with handles upon each end, and was inclosed in a framework which surrounded the cogwheels referred to. This framework extended up for  [**2] several inches above the platform of the car. The kindling loaded upon the car was of various sizes, and was heaped up higher than the top of the boxing around the lever, and above the cogwheels. With the car in this condition, and loaded thus by the direction of the section foreman, they started to the section house. When they got nearly to the station, they stopped, having no switch key, and set the car over on the main track. The foreman then ordered the men, "Jump on, let's go home to supper." They got on as before, and when running about 20 miles an hour, and within a few feet of its destination, the car suddenly stopped; the front part reared up like a frightened horse; it then plunged forward, leaving the track, and, throwing off the men and kindling, ran over the plaintiff, who had fallen off, breaking his left leg near the hip joint, severely injuring his right ankle, and otherwise bruising him. When he came to, the car was on top of him. The accident was caused by a piece of kindling working down into the hole by the side of the lever and getting into the cogwheels, and thus locking the front axle of the car. Appellant filed this suit to recover for his injuries, alleging  [**3] that they were permanent, and due to the negligence of the defendant's foreman in permitting the car to be and remain unfit, unsuitable, and unsafe for the purposes for which it was used. At the conclusion of the evidence offered by him, which showed substantially the facts we have stated, the court peremptorily instructed the jury to find for the defendant.

The section foreman had charge of the car, and was in command of the men. It was his duty, before starting his car, to see that it was in a safe condition to be operated. The short pieces of kindling which were piled above the hole in which the lever worked might reasonably be anticipated to work down in the open hole, and bring about just the result that happened. There was, therefore, evidence from which the jury might have inferred negligence on the part of the section boss in starting his car in this condition. It is insisted, however, for appellee, that the condition of things was equally apparent to appellant as to the section boss, and that he, by operating the car, assumed the risk. The plea of contributory negligence sets out that plaintiff was negligent in working at the front end of the car. Appellee, having set out certain  [**4] acts as contributory negligence, cannot rely on other acts not alleged. But waiving this, and treating the plea of contributory negligence as sufficient to raise all questions shown by the evidence, we think the case should have been left to the jury, both on the question of the negligence of the section foreman and the contributory neglect of the plaintiff. The plaintiff did not have charge of the car. It was not his duty to see that it was properly loaded, or in a safe condition to be operated. It was his duty to obey the orders of his superior, and, as below explained, he had a right to rely on the presumption that the foreman would do his duty, and would not order him to operate the car unless it was safe. He was not required, before obeying the orders of his foreman, to stop and examine the car, and see if everything was right. He testified that he did not know the way the kindling was loaded, or that there was danger in operating the car. He was not obliged to be on the lookout for these things, but might rely on the judgment of his superior; and if the foreman was negligent, and thereby he was injured, he may recover, unless he failed himself to exercise such care as may be  [**5] ordinarily expected of a person of ordinary prudence situated as he was. In Bradshaw's Adm'r v. Railroad Co. (Ky.) 21 S. W. 346, the servant was injured by falling off a hand car because he had not sufficient standing room from the car being overcrowded; but he knew how much room he had, and, so knowing, undertook to work there, and was held to have assumed the risk. This case rests on a different principle. By the custom of the business, the hands were transported on the hand car from the place where they were at work to the section house when they quit for the day. The hand car on which they were so transported was so loaded that it was derailed, and thrown from the track. If this was due to the negligence of the defendant or its foreman, then it is liable for the unsafeness of its vehicle resulting in the injury to appellant, unless the risk was such that an ordinarily prudent person, situated as he was, by the exercise of ordinary care would have perceived and avoided it. On the return of the case the defendant may be allowed to amend its answer, if it desires to do so.

Judgment reversed, and cause remanded for a new trial and further proceedings consistent with this opinion.

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