183 Ky. 571 | Ky. Ct. App. | 1919
Opinion of the Court by
Reversing.
This action was instituted by the appellee, George McIntosh, against the appellant, Louisville & Nashville Railroad Company, to recover damages of it, suffered by the appellee, while a servant of the appellant, and caused from a fall, received by him, upon the track of the railroad.
Upon a trial, before a jury, the appellee stated, that he had been engaged in working as a laborer, upqn a certain section of the road, under the directions of a foreman, for about eighteen months, and upon a night, about seven o’clock, and after it- had become dark, he and several others of the section men were called out, by their foreman, for the purpose of repairing a low place, in the. track. They were proceeding along the track upon .a hand car, when an engine was heard to blow, and it was thought to be a train approaching from the direction, in which the hand ear was going. There was a curve, in the track, just in front of the hand car, and the foreman directed bim. to take the lanterns, a white one and a red one, and to run around the curve to á point, from which he could signal the oncoming train, and prevent it from coming forward and colliding with the hand car, and that the foreman cursed him, when giving this direction. He was running forward, with the lanterns in one hand, and when he had. gone forward, along the track, for about three-hundred yards, he came to aplace, where the cross-ties had been raised so as to rest upon the top of the ballast. From his testimony, the cause of his falling is not clear, but, the best, that can be made of it, he stepped upon a cross-tie, a portion upon one side of which was 'decayed, and the decayed portion broke off, and slipped away, and caused him to lose his balance and to fall. He fell upon his face, which received a cut, and his side, as
At the close of the testimony for appellee, the appellant moved the court to direct a verdict for it, but, the motion was overruled.
The appellee, then offered an instruction to the jury, to which the appellant objected, but his objection was overruled, and the instruction was given, and appellant saved an exception. The instruction, in substance, directed the jury, that it was the duty of the section foreman to warn the appellee and other men working under him of danger, and if it believed from the evidence, that appellee, while in the employment of the appellant and under the direction of its foreman, and without negligence upon his part, and while attempting to flag down one of appellant’s trains, was injured, it should find for him.
The jury returned a verdict for damages for appellee, and the court rendered a judgment against appellant in accordance with the verdict, and overruled the motion for a new trial, and the railroad company has appealed.
It will be observed, that the petition did not state a cause of action. Negligence of the appellant is not alleged, nor charged, as being the cause of the injuries suffered by appellee, either directly, or remotely, nor is appellant charged with any negligence. The profane language alleged to have been used by the foreman, in directing the appellee, could not have been the cause of his falling upon the ground, from which, ho avers,his injuries arose, nor is his fall attributed to that cause. The peti
18 R. C. L. 544.
The plea of contributory negligence, not having been controverted, it was admitted, upon the trial by the appellee, that his injuries were caused by his own negligence, and that except for his own negligence, the injuries, would not have been sustained. The defense of contributory negligence, is an affirmative one, and when the truth of it is admitted by a failure of the plaintiff to controvert it, he has no case to submit to the jury. L. & N. R. R. Co. v. Paynter’s Admr., 82 S. W. 412; Brooks v. L. & N. R. R. Co., 71 S. W. 507; Mast v. Lehman, 100 Ky. 464; Louisville Ry. Co. v. Hibbitt, 139 Ky. 43. TIence, the motion for a directed verdict in favor of the railroad company should have been sustained.
The evidence, offered by appellee, failed to prove or conduce to prove, a cause of action, in his behalf. It is a principle applied generally to the rights, duties and liabilities of employers and employes, that the employe when engaging in an emplojunent, assumes all the ordinary risks, which are incident to the employment. In other words, the assumption of such risk, grows up out of-the contract of employment. Burton Construction v. Metcalf, 162 Ky. 366; Washists & B. M. A. Co. v. Hall, 167 Ky. 819; L. H. & St. L. N. R. R. Co. v. Henry, 167 Ky. 151; Phillips v. Carter & Farris, 166 Ky. 538; Gordon v. C. & O. Ry. Co., 166 Ky. 339; Isaacs v. L. & N. R. R. Co., 167 Ky. 256; Ohio Valley Co. v. McKinly, 16 R. 445;
The evidence shows, that it was a customary duty of. the men, upon the section, with appellee, to signal trains, and to go ahead around curves, to give signals to protect trains, from colliding with hand cars, and to protect the hand cars from such collisions, and to give signals, -wherever they -were directed, at tunnels, bridges and other places, where such duties were necessary, and appellee liad been frequently assigned to, and performed such duties. The nature of the work of keeping a track in repair, so as to not hamper and impede commerce and public travel, and prevent their exposure to dangers, reasonably makes necessary, the movements of section hands, with hand cars, oftentimes at night, as well as by day, and thus the necessity of signal duties arises, at night, as well as by day. In so doing, as well as performing various other duties, it is necessary for the section hands to walk along the tracks of the road,and incases of supposedemergency; as in the instant case, to move very hurriedly. It is not practical for a railroadcompanyto maintain tracksof such smoothness, and dryness, as to remove all probability of a section hand stumping his toe and falling, or of his foot from slipping, and thereby, causing him to fall, or his being caused to fall from any other ordinary condition of the track. The cross-ties are usually made of wood, and all men know, that after a time, the wood becomes decayed upon the sides, without rendering them less serviceable for their purpose, and it is as well known, that the ties usually project, slightly, in some instances, and, more in others, above the surface of the tracks, and an experienced section hand knows, that in passing along the track, he must encounter such obstacles as mentioned, as well as other slight obstacles, which may happen to get upon the track from one cause or another. The appellee does not claim, that the cross-ties having been laid upon the ballast, at the place of his mishap, was the cause of his injury, as he knew all about the condition of the track at that point, having assisted in the work, but, one of the cross-ties, whether one laid upon the surface of the ballast, or not, does not appear, was decayed, so that, when he stepped upon it, a portion broke off, or having theretofore broken off, slipped from under his foot, thereby causing him to be precipitated upon the ground.
The appellee was an experienced man, in the work, he was undertaking to perform; it was a necessary part of his duties; he was provided with the customary lights to guide his footsteps, and all that was reasonably necessary to enable him to see and avoid any ordinary risks of danger.
To direct an experienced section hand, who is acquainted with the track, to proceed hurriedly in an emergency, to flag a train, at night, when supplied with the customary light to guide his steps, does not seem to be requiring of him any extraordinary risk. Hence, it is concluded, that the cause of appellee’s injuries, was one of the ordinary risks, incident to his employment, and was not caused by the neglect of any duty, which his employer owed to him, and having thus proven no cause of action, the peremptory instruction to the jury, should have followed the motion for a directed verdict, for appellant, upon that ground, as well as the admission by the pleadings, that his own negligence caused his injuries. The instruction given was erroneous, as it was not based upon any issue made in the pleadings, and was otherwise, faulty, but, in as much, as the peremptory ought to have been given, for the two reasons, above stated, the merits of the instruction will not be, further, discussed. The appeal is therefore granted, the judgment reversed, and cause remanded for proceedings not inconsistent herewith.