136 Ky. 290 | Ky. Ct. App. | 1910
Opinion op the Court by
Reversing.
John Lumpkin was an engineer in the service of the Louisville & Nashville Railroad Company, having charge of a switch engine in its yards at Corbin, Ky. He worked during the day and another engineer took charge of the engine and ran it at night, coming on for duty at 6 p. m. Ten or fifteen minutes before 6 p. m. Liumpldn pulled his engine with a box car attached to it up to a water crane and stopped there for two purposes: First, to take water; and, second, to repair some of the appliances of the engine which were out of order, and which it was his duty to repair before lie turned it over to the night man. For the purpose of making these repairs, he went under the engine, while the fireman turned the crane and hegan running water into the tank. While they were thus engaged the fireman saw a train of 42 cars backing down on tlie track on which they were standing. He at once blew the whistle as a danger signal. At this Lumpkin came out from under the engine, and the men who were backing the cars stopped them, but not before the cars had backed against the cars standing next to the engine, and pushed that and the engine several feet down the track. Lumpkin and the fireman stood there for several minutes, waiting for these cars to move.
In the meantime the night engineer arrived to take charge of the engine. But it was' not quite 6 p. m., and Lumpkin said to him: “There is a minute or two repairing to be done under the engine,” and was
Before going back under the engine to. finish the repairs, Lumpkin had stood by the side of the engine from four to eight minutes. He saw some employes on the backing train get down and leave it as was done when no further movement of the cars was to be made. He saw what he thought was the smoke of a detached engine going to the roundhouse. He did not know that the train had become coupled to his box car. The engine which had backed in this train was around the curve from him. He could not see it. He did not go around the curve to assure himself of what the situation was. He did not confer with any of the men on that train to learn what they were going to do. He gave them no notice that he was going under the engine and they knew nothing of his danger. He knew that the train had backed against his car; and he also knew that sometimes when this
The engine stood in a busy yard where trains and cars were constantly moving about, and, when he went under the engine, there was no space between the car attached to the engine and' the cars of the train which had run against it. Any backward movement of that train would necessarily move his engine. He had only been saved from injury a few minutes before by getting out from under the engine when the fireman sounded the alarm whistle, before the collision occurred. It is insisted that the men in charge of the backing train were negligent in backing it against Lumpkin’s car, and that, when they backed it against his car, there should have been a man on the rear of this train to see whether it had coupled to the car before the train was moved up. It is pretty evident from the proof that the men in charge of the train did not intend to back against Lumpkin’s car, or to couple to it, and that there was negligence on their part in backing and coupling to it. But Lumpkin was not hurt then. After he got from under the engine, he knew that the train had backed against the car.
When he then went under the engine, he knew that any backward movement of the train would move his engine, and he did not know when such a movement might take place, for, although as he thought the engine which had put the cars there had left, he could not see around the curve, and he could not tell at what moment another engine might come against these cars. As a matter of fact, the engine which •placed the ears there had not left, and the smoke which Lumpkin saw was the smoke of another engine. When he went under his engine, his engine and
When Lumpkin went under the engine, he knew that any movement of the engine imperiled his life. He also knew that there could be no backward movement of the train referred to that would not necessarily move his engine back. If that train had backed and had thus injured Lumpkin, it would hardly be maintained that he was not guilty of contributory negligence in going under the engine; for manifestly he did not take any adequate precautions to know what that train was going to do next. The fact that the train went forward instead of backward in no way affects the question of his contributory negli-' gence in going under the engine; for he went under
There was the same necessity for care on his part after he saw the train come against his car, as there was for care on the part of the men in charge of the train. It was the duty of both to exercise ordinary care in the handling of what was in. their charge.. Lumpkin did not exercise any care to ascertain whether his engine and ear were free, and, if he had the right to assume they were free, it is hard to see why the men in charge of the train had not an equal right to assume the same thing. It has long been settled that men who go under trains without notice to the trainmen take the risk. We can not see why this rule should not apply here. Lumpkin knew the cars of the train were against the car that was attached to his engine, and that, so far as any backward movement of that train was concerned, liis engine and car were for practical purposes a part of the train. He did not know that the automatic coupling had fastened, but he knew that such couplings were in common use and were liable to fasten. To say that lie may recover here would be in fact to hold that a person may go under an engine or cars in a yard like this, without notice to others or taking any precautions for his own safety, and recover for his injury if he is hurt. This we can not do.
Judgment reversed, and cause remanded for further proceedings consistent herewith.