Coons v. Louisville & Nashville R.Coons v. Louisville & Nashville R.
Opinion of the Court by
Reversing.
In this case declared under the Federal Employers’ Liability Act, appellant, a section hand in appellee’s employ for about fourteen years, is seeking damages for injuries received May 17, 1916, while loading' steel rails onto a flat car.
From a directed verdict for the company at the conclusion of appellant’s evidence, this appeal is taken.
The correctness of this ruling raises two main questions, viz.: (1) Is the case triable under the federal act? and (2) was appellee guilty of negligence?
The facts.: The rails which the men were loading came from the Lexington branch of- the L. & N. R. R. Co., neai Midway, and had been piled on cross ties near the trank. They were being loaded for shipment to Hazard, Ky., for use in the tracks in appellee’s yards and which tracks were used in intrastate and interstate traffic. Because of their weight the handling of rails necessitates the services of several men. Two rails used as skids
Unity of action being required it is customary to appoint one or two of the more experienced men as end; men; those so chosen are usually stationed at the end of the rails, and their duty is to give orders when to load. It is the duty of the other members of the gang to obey the orders of the end men.
At the time of the accident all the rails had been loaded with the exception of four or five. W. C. Van-diver was the foreman and Boone' Gibson the end inan. One of the remaining rails had become fastened under the ties and their first effort to dislodge it failed. Gibson told appellant to take hold of the rail and help them get it out. Appellant stepped in, straddled the rail and (quoting from one of the men): “When he stepped in why they raised the rail up and threw it back, and there was another rail there, and as he stepped' between them this rail clamped him.” • '
Appeallant’s leg was broken and he sustained other injuries according to the allegations of the petition.
The Federal Act. We think appellant had a right to maintain his action under the federal act.
In I. C. R. R. Co. v. Kelly,
C. N. O. & T. P. R. Co. v. Hansford,
In Probus v. I. C. R. R. Co.,
C. N. O. & T. P. Ry. Co. v. Tucker,
In Ohio Valley E. Ry. Co. v. Brumfield, Admr.,
In Schaffer’s Admx. v. I. C. R. R. Co.,
In the following cases employes were held to have been engaged in interstate commerce at the time they were injured:
Painting a bridge used for interstate traffic, L. & N. R. R. Co. v. Netherton,
One of the leading cases on this subject is Pederson v. D. L. W. R. Co.,
In the Pederson case an employe, killed while carrying a sack of bolts or rivets to be used in repairing a bridge which was in use in both intrastate and interstate commerce, was held to be employed within the meaning of the federal act. The bolts were for use the afternoon of the accident or next day. The] United States courts have referred to this case with great frequency, nor do we think there is any present day disposition to modify or limit the rule there established. If there has been such a tendency, the trend is now the other way. See Law v. I. C. R. R. Co.,
The test is, was the employe at the time of the injury engaged in interstate transporation or in work so closelv related to it as to be practically a part of it? (Shanks v. D. L. W. R. Co.,
If unloading or distributing rails for interstate purposes or carrying rivets or bolts to be used on a bridge so employed, is work such as is embraced in the federal statute, we are of the opinion that loading rails to be used in interstate tracks is an employment likewise within the federal act.
The negligence. Whether appellant, acting under instructions from the end man, in assisting the_ members of the gang to release the rail was injured while so employed through the negligence of the other members of
- The doctrine , of assumed risk has not been entirely abrogated by the Employers ’ Liability Act. It is only inapplicable where the injury grows out of a violation, of some .federal statute enacted for the. safety of employes. Truesdell v. C. & O. Ry. Co.,
■-In this latter case we said:
“■As-the plaintiff’s claim does not grow out of a violation of such a statute, the doctrine of assumed risk applies. Under that doctrine the employee assumes those risks which are known to or are clearly, observable by him.' There' was nothing complicated about the character '-of the work. The operation was simple. The brace and'ties were clearly-observable by plaintiff. It is not insisted that-'the rail ivas dropped or, thrown in a negligent manner. Being dropped without negligence, the danger of being struck by it was one of the risks ordinarily and usually incident to the employment, and, therefore, one which plaintiff assumed.1 It follows that the trial cpurt properly directed a verdict in favor of the defendant.” • ' -
• But the exception pointed out as indicated by 'the italicized words, is the very negligence relied upon by appellant in the instant case' and hence the court erred in sustaining the motion for a peremptory instruction.
. "Appellant was not prejudiced by the court’s refusal to permit the witness, Booker, to' testify as to a statement said to havé been made by appellant at the time of his injury.
_ Without entering into a discussion as to .the competency or incompetency of this testimony we deem it sufficient to say that appellant testified in Ms own behalf, and Ms téstimony is substantially the same as that shown by the' avowal. The admission of the statement would not have aided of strengthened his case'in any way.
For. the reasons stated the judgment will be reversed for further proceedings not inconsistent' with this, opinion,, . .... •