160 Ky. 215 | Ky. Ct. App. | 1914
Opinion of the Court by
Eeversing.
In this action for damages by Elvie "Wheeler, suing by Ms next friend, against the defendant, Cincinnati, New Orleans & Texas Pacific Eailway Company, plaintiff recovered a verdict and judgment for $10,000. The railway company appeals.
According to the evidence for plaintiff, Wheeler, who was just 18 years of age, and who had never had any ex
“Bearer, Elvie Wheeler, has instructions to learn the road between Danville and Ludlow for service as fireman. This will be your authority for carrying him and informing him of his duties. This letter is not good on first and second class trains, and is void 10 days after date shown above.
“Conductors and engineers honoring, will make endorsement thereon, showing train number, date and between what points honored, indicating their opinion as to his ability. They will require the applicant to sign his name in the blank provided below, in their presence. ’ ’
On receiving this authority, Wheeler took passage on one of defendant’s engines and returned from Dan-ville to Ludlow. The next morning he presented his authority and took passage on an engine running south. The train was light. The fireman said that it was not a good train to learn firing on. Near Corinth there was a fill. The engineer said they had slow orders for that place. He said they had six mile orders. The engineer also stated that if he was Wheeler he would get off and catch a heavy freight back. He further stated that Wheeler could catch a heavy one either way; that Wheeler could easily get off at the point where they had slow orders and catch another engine. When the engine on which Wheeler was riding reached Corinth early in the afternoon he got off. He then remained about Corinth until the northbound freight came up. When the train approached he held out his hand with the paper in it, but did not remember whether the paper was closed or not. As the train approached he could not tell how fast it was going. He first tried to get on the tender of the engine. He then tried to get on the cars behind, and was thrown under the cars. His foot was cut off, and his leg was afterwards amputated below the knee.
Other witnesses testified to Wheeler’s inexperience and to the extent of his injuries.
James W. Skinner, who lived at Corinth, stated that he was present when a conversation took place between Wheeler and the railroad track walker. Wheeler asked if the train slowed up going over the fill, and handed Eogers a piece of paper. Eogers said “They will certainly slow up for you.”
For the defendant its engineer and firemen both stated that they did not remember any conversation with Wheeler. They did not suggest his leaving the engine and taking another, or call his attention to the fact that there was a slow order for the fill near Corinth. The fireman stated that the train slowed up at that place to let a signal man get off there. Wheeler said nothing about getting off until he was going down the steps. The engineer and fireman on the northbound train which injured Wheeler stated that they were proceeding north about 6 o’clock, p. m. They had no notice or information that anyone would attempt to get on the train at that place. They saw two men standing in the pike as they approached, but no signal or action that indicated a purpose or design to board the train until the younger man tried to catch the handle bar of the gangway as they passed. The engineer waived him away. He then looked back as far as he could, but saw Wheeler make no effort to board the train. W. T. Eothwell, a citizen, was in the pike with Wheeler when the northbound freight approached. He says that plaintiff made three attempts to board the train while in the pike and was knocked down. He then got over the cow gap and grabbed at the cars again before he caught hold.
Defendant also introduced evidence to the effect that Wheeler was not an employe of the company, but had authority to ride the engine for the purpose of learning
The evidence further shows that the train on which plaintiff rode to Corinth and the train which injured him, were both, engaged in interstate commerce. The case was tried under the Federal Employers’ Liability Act.
Plaintiff predicates his right of recovery on the following facts: He had authority to.ride on certain of defendant’s locomotives engaged in hauling freight, for the purpose of learning the duties of a fireman. On June 2, 1912, he was ordered and directed by defendant, its agents and officers superior in authority, to run from Ludlow to a point near Corinth, Kentucky, and there leave that locomotive engine and wait for another, and board the latter train at said point and assist in firing and running the engine to Ludlow, Kentucky. He was informed that the latter train would slow up to a speed of six miles an hour or less. In pursuance of said orders, he proceeded to Corinth. There he left that engine and awaited the approach of the train going north. As the train approached he attempted to board same, when he was thrown under the train and his injuries received. His injuries were caused by the negligence of the agents and servants of the defendant company in operating the said train, in that they did not slow up or slacken speed as they were ordered to do, and as he had been told they would do, but ran the same at a speed more than six miles an hour, and at such a speed that he could not board the same in safety. He was young arid inexperienced in running and operating an engine and train. As the train approached he could not see it for but a few yards, and after it came in sight he had no opportunity, and could not because of his inexperience, judge and determine that the speed of the train was in excess of what it had been directed to be, and what he had been told it would be.
It is difficult to determine the precise relation which plaintiff bore to the defendant company. Strictly speaking, he was not in its employ, but had a mere permit to board its engines for the purpose of learning the duties of a fireman. However, we take it that if, while on its engines, those in charge of the train failed to exercise ordinary care for his safety, the liability of the company would be the same as if he were in its actual employ. However this may be, it is certain that when off
Judgment reversed and cause remanded for a new trial consistent with this opinion.