127 Ky. 496 | Ky. Ct. App. | 1907
Opinion of the Court by
Affirming.
Appellant was a section hand in the employ of the Louisville & Nashville Railroad Company, working under the direction of a section foreman. On the morning of March 28, 1905, this foreman, with appellant and a gang of men, left Jellico, Tennessee, on a hand car to go to a point north of Saxton to work. They rode in this way until they met a passenger train which ‘was going south. In some way unexplained in the record, the hand car became disabled, and from this point, to the place where they were to work that day the hand ear was pushed by the section hands, including appellant, who walked along
It is insisted for appellee that the allegations of the petition do not constitute a cause of action; that unless it is shown by the plaintiff that the torpedo was not placed upon the track for a necessary or
' It is a fact well known to those familiar with the operation of railroad trains that torpedoes are in general use as signals. Where a train has become disabled, or for any cause whatever is prevented from making schedule time, and is caught between telegraph stations off its schedule time, with the knowledge that another train is following, it becomes necessary that some signal should be given to the second train notifying it that the train in advance is blocking the way. Many devices and schemes have been resorted to in order to accomplish this result. Frequently a flagman is sent back to warn the approaching train, but in such cases the train in advance-
We come next to a consideration of the question as to whether or not the trial court erred in peremptorily instructing the jury. Upon this question, less of difficulty is presented, for the reason that the proof shows that appellant had been in the employ of the company some time; that he was thoroughly familiar with the character and nature of torpedoes; that he knew they exploded-when run over or pressed by any heavy body; and that they were in constant use by the railroad company for the purpose of notifying trains that the track ahead was obstructed. On the morning in .question appellant knew that a train •had just gone south, and that, while they were following this train, he heard another train coming, and they were endeavoring to- take the hand car to a place of safety before it arrived. He knew that he had had no opportunity of being apprised of thé fact, that a torpedo had been placed upon the track, and he also knew from his acquaintance with the operation of railroads that, if the train which had just passed should for any cause lose time or be compelled to stop,' it would place a torpedo upon the track to notify any train that' might be following it that it was obstructing the way, and, with this knowledge of the custom of those in-charge of.trains, he had a right to know that a torpedo might be placed upon the track, and in. pushing the car along it was his duty to see if one was placed upon the track, and not blindly push the hand car over it and run the risk of being injured, and, if he does so, as the proof in this case shows, it is due to his own carelessness. In the Leizure Case the injured party was riding upon the car. The record shows that he fell off and was run over by the car. Therefore he must have
Judgment affirmed.