193 Ky. 312 | Ky. Ct. App. | 1921
Opinion of the Court by
Affirming.
The judgment dismissing appellant McGaughey’s petition .was entered on a directed verdict in favor of the Director General of Railroads on his motion made at the conclusion of all the evidence. McGaughey appeals. It may be conceded that appellant was engaged in interstate commerce at the time of his injury, for he was a section hand assisting in repairing the main track of the Southern Railway in Kentucky, an interstate system of railroad lines extending into and through many states, including Kentucky. He and another man were unloading crossties from a flat push car on the track; on the car were some fifteen or twenty ordinary crossties, which, .being laid crosswise, extended over the edge of the flat car about eighteen inches on either side. The ties were of oak and of the usual dimensions.' The section gang were removing old ties from the roadbed and putting new ones in their places. The foreman went in front and marked the ties in the track to be removed and appellant McGaughey and his buddy were directed to and were engaged in dropping neAv ties from the push car at every place marked by the foreman. His buddy would push
The motion of the defendant for a peremptory instruction in his favor as Director General of Railroads made at the conclusion of all the evidence was but' a demurrer to the evidence challenging the sufficiency thereof to entitle plaintiff McGaughey to have his cause submitted to the jury. We think the trial court properly sustained that motion, for appellant admits that he had been engaged as a section hand handling erossties and doing track work for a number of years and that he saw or by' the exercise of reasonable care could have seen the splinter or snn crack in the end of the crosstie before and at. the time he took hold of the tie. There was nothing new, strange or dangerous about the tie. He had handled many such before. The process of pulling a crosstie from a flat push car in the way and manner appellant was doing the work was so simple, natural and common that he did not need or require instruction from his fore-', man, bnt could see and understand the whole process as well as any other man on the job. It did not require skilled labor. If he pulled the tie up against himself so as to cause the splinter or sun crack in the tie to stick into his overall jacket and he dropped the tie without disengaging his coat therefrom, he alone is to blame, not the railroad nor the Director General.
As this action is under the federal law it is insisted for appellant McGaughey that the tie was an appliance within the meaning of the Congressional act allowing a
We have held that a spikémaul, T rail, chisel, crowbar, wheelbarrow, shovel, pick, chopping axe, and other such tools and instrumentalities are embraced in the class and governed by the rule known in Kentucky as the simple tool rule. There is nothing more complicated- about a crosstie than in the simplest of these. Clearly, we think
Perceiving no error to the prejudice of appellant, the judgment is affirmed.