198 Ky. 820 | Ky. Ct. App. | 1923
Opinion op the Court by
Affirming.
Proceeding under the Federal Employers’ Liability Act, Labe S. Raikes brought this suit in the Henderson circuit court against the Director General of Railroads in charge of the operation of the Louisville & Nashville Railroad Company and the Illinois Central Railroad Company, to recover damages for personal injuries. The action as to the Illinois Central Railroad Company was removed to the United States district court for the western district of Kentucky and afterwards dismissed. On the trial'of the cause against the Director General in charge of the operation of the Louisville & Nashville Railroad Company the trial court gave a peremptory instruction in favor of the defendant. Plaintiff appeals.
Though the' railroads were under federal control, at the time of the accident, yet, for the sake of brevity and clearness, we shall discuss the case as if only the railroads themselves were involved and not the Director General in charge of their operation.
in support of his cause against the Louisville & Nashville Railroad Company appellant pleaded the following facts: The Louisville & Nashville Railroad Company owned and operated certain tracks and railroad yards in the city of Henderson and a bridge extending from Henderson across the Ohio river, upon which bridge a railroad track was located and operated. The Illinois Central Railroad Company operated its trains in and through said yards of the Louisville & Nashville Railroad Company under a contract by which such user was permitted upon certain terms as to compensation. The Louisville. & Nashville Railroad controlled the operation of all locomotives and trains in said railroad yards, both its own and those of the Illinois Central Railroad Company, and, subject to such control, the trains of the Illinois Central
According to appellant’s evidence he left Howell, Indiana, about 9:30 p. m. on the night he was injured, and reached Henderson some time after eleven o’clock p. m. When he reached Henderson he was instructed by the conductor to take the registration card into the telegraph office and leave it. The telegraph office was located just across from the depot, and between it and the depot were tracks Nos. 1, 2 and 3. After giving the card to the operator, he started from the telegraph office to the lunch room in the passenger station to get something to eat and catch L. & N. train No. 54, on which he was to leave some time later. In crossing the tracks he was struck and severely injured by an Illinois Central train running north on track No. 2, which, according to his evidence and that of others, was running at a high rate of speed and gave no signals of its approach.
There was introduced in evidence a contract dated March 1, 1901, between the Louisville & Nashville Railroad Company, the Illinois Central Railroad Company and the Louisville, Henderson & St. L. Railroad Company. It appears from the contract that the Illinois Central Railroad Company was the owner in fee of certain land in Henderson on which it was proposed to build
Mrs. Bessie Tweddell, operator at the Union Station, testified that Illinois Central trains, from the time they got into Henderson yards until they got into Evansville, were run on Louisville & Nashville orders. The tower man had control of the interlocking plant and threw the switches for the trains. Will Kellner, the tower man, testified that he threw the switches for trains coming into the yards and out on to the bridge on signals from the train. He could not let any train on the bridge until he got orders from the L. & N. dispatcher at Evansville. If a train wants to go over the bridge without stopping or
While the Henderson yards were jointly used by the two railroads, the evidence shows that the track on which the accident occurred was an Illinois Central track built on Illinois Central property. While it is true that under the contract between the two companies the Louisville & Nashville Railroad was charged with the duty of maintaining the track, there was no failure of duty in this respect as the accident was not caused by the defective condition of the track.
It is insisted that the case should have gone to the jury on the theory that the Louisville & Nashville Railroad Company failed to furnish appellant a safe place to work. We have often ruled that where the injured servant seeks a recovery because of the master’s failure to furnish him a safe place to work, such ground should be pleaded. L. & N. R. R. Co. v. Irby, 141 Ky. 145, 132 S. W. 393; Monroe v. Standard Mfg. Co., 141 Ky. 549, 133 S. W. 214; Ohio Valley Coal & Mining Co. v. Heine, 159 Ky. 586, 167 S. W. 873. Appellant did not plead such ground in terms, nor did he plead facts showing that such ground was relied on. So far as the petition was concerned, the physical conditions under which he was required to work were perfectly safe, and the sole cause of his injury was the negligence of the L. & N. Railroad in permitting the Illinois Central Railroad to run its trains at excessive speed and without sufficient warning.
Nor can liability be predicated on the theory of joint operation. While a railroad which leases its tracks or grants joint operating privileges to another company is liable to third persons and members of the public for the negligent operation and handling of trains over the road by the lessee or licensee, the servant of the lessor or licensor is not a third person or member of the public within the rule, and the lessor or licensor is not liable to him except for its failure to maintain the road, station houses,
There being no liability on the above grounds, it remains to determine whether the claim that the Louisville & Nashville railroad Company controlled the operation of the Illinois Central train may be sustained. While there was evidence that Illinois Central trains, in proceeding through certain parts of the yard and over the bridge, were subject to orders from Louisville & Nashville employes, there was no proof that the Illinois Central train, at the time and place of the injury, was subject to such orders, much less orders with respect to its rate of speed or the giving of warning. On the contrary, the evidence shows that the train which struck appellant had entered the interlocking system and was proceeding within its limits at the time of the injury. Prom that point it had to travel nearly five hundred feet before it reached the Louisville & Nashville main track which runs over the bridge. It was also shown that the interlocking system is controlled from the tower house by the tower man; that he gave the signals and allowed trains to enter the interlocker; that he alone designated the track on which a train should run; that he could permit trains to run anywhere within the interlocker; that he had authority to allow a train to start to the bridge but not go over it, and that he was an employe of the Illinois Central Railroad. Therefore, the case is simply one where the. negligence, if any, was the negligence of an Illinois Central crew, engaged in the operation of a train which was subject to their control, and. not to the control of'the Louisville & Nashville Railroad Company.
No liability on the part of the Louisville & Nashville Railroad Company having been shown, it follows that the court did not err in directing a verdict in its favor.
As the Illinois Central train which struck and injured appellant was not subject to the control of the Louisville & Nashville Railroad, it necessarily results that the rejection of evidence of the habitual use of the tracks by empoyes at the place of the accident, and of the custom of the Illinois Central Railroad to run its trains at an excessive rate of speed and without sufficient warning, was not prejudicial error.
Judgment affirmed.