Payne v. Ramsey

195 Ky. 117 | Ky. Ct. App. | 1922

Opinion op the Court by

Judge Moorman

Reversing.

Appellee recovered a judgment in the McCreary circuit court for $250.00 damages against appellant for injuries sustained on the 24th day of January, 1918. An appeal is asked on the ground that the lower court should have directed the jury to return a verdict for the Director General at the conclusion of the plaintiff’s evidence.

There was hut one witness, the plaintiff, who testified that he was employed by the United States government to carry mail bags and place them upon the mail crane beside the track of the C. N. 0. & T. P. Railway Company at Pine Knot. He had been engaged in this service several months prior to November, 1917, at which time the right of way was fenced on both sides and a cattle guard placed at the end of the fences. After that time, according to his testimony, it was necessary for him to cross the cattle guard in going to and returning from the mail crane. This he did twice a day until the date of the accident. There were snow and ice on the cattle guard at the time of the accident and in attempting to walk across it he fell and injured one of his legs. He claims that the negligence of appellant consisted in failing to furnish him a better route to the mail crane and also in failing to remove the snow and ice from the cattle guard.

There are two grounds on which the judgment must be reversed. The first is, that the suit was brought against the C. N. O. & T. P. Railway Company and proceeded against that company until the plaintiff filed a reply, at which time he changed the style of the action from James Ramsey v. C. N. O. & T. P. Ry. Co., to James Ramsey v. John Barton Payne, Director General of Railroads as Agent. Thereafter the action proceeded in the style indicated in the reply, but no order was entered substituting the Director General for the railway company and a judgment was rendered against the. Director General who had not been sued and who was not a party to the proceeding in any way other than as we have stated. • When the accident happened the property of the C. N. O. & T. P. Railway Company was in the possession and under the control of the Federal government, operated by the Director General of Railroads. . A judgment could not be rendered against the Director General in a suit brought against the railway company and in which the Director General had never been substituted for the railway company or formally made a party to the- proceeding. (Commonwealth v. L. & N. R. R. Co., 189 Ky. 309; Rutherford v. Union Pacific R. Co., 254 Fed. 880; Dahn v. McAdoo, Director General, &c., 256 Fed. 549; Nash v. Southern Pac. Co., 260 Fed. 280; Blevins v. Hines, Director General, 264 Fed. 1005.)

The judgment would have to be vacated even if the suit had been filed against the Director General or he had been properly made a party to it. The evidence -shows that appellee knew the snow and ice were on the cattle guard and voluntarily started to cross it. He knew as well as, or better tban, any one else wbat tbe condition of the walkway was and whether it was safe to attempt to cross the guard. If there was danger be knew it, and one cannot voluntarily walk into an obviously dangerous place and escape responsibility for bis own act. Regardless of whether it was or was not tlie dnty of tbe Director General to furnish Mm a better way to reach tbe mail crane, a question which need not be decided, be cannot recover. We do not consider that tbe failure to remove tbe ice and snow violated any duty owing appellee. But if it be assumed that appellant was negligent in that respect, appellee was also guilty of negligence but for which be would not have fallen, for be deliberately undertook to use a way, tbe dangers of which, if there were dangers, were perfectly apparent to him. He cannot bold another responsible for injuries resulting from bis voluntary act, tbe probable consequences of which be better tban any one else knew. There was a complete failure on bis part to show a maintainable cause of action for tbe injuries alleged. (Burden v. I. C. R. R. Co., 129 Ky. 764; Ky. Wagon Mfg. Co. v. Gossett, 142 Ky. 842; Gossett v. Ky. Mfg. Co., 153 Ky. 101; Paducah Pole and Timber Co. v. Brockwell, 161 Ky. 424; Jaegar v. City of Newport, 155 Ky. 110; Varney v. City of Covington, 155 Ky. 662.)

Tbe motion for an appeal is allowed and tbe judgment is reversed for proceedings not inconsistent with this opinion.