187 Ky. 560 | Ky. Ct. App. | 1920
Opinion of the Court by
Affirming
In a suit for personal injuries, plaintiff, Williard 8. Titus, recovered of the defendant, the Standard Oil Company, a verdict and judgment for $15,200.00. The defendant appeals.
At the time of the accident, which occurred on March 16, 1917, the Kentucky & Indiana Terminal Railroad Company was engaged in the business of switching cars on to the private tracks of various industries surrounding the city of Louisville, and plaintiff, an experienced railroad man, was the engine foreman in charge of its switching crew. Cars consigned to the defendant were placed on its track in accordance with orders put into a small box by Droege, one of defendant’s employees. On reaching the premises on the morning of the accident, plaintiff found the following order in the box: “Conductor: Place B. & 0. 170916 at end of track; all cinders next; other loads alter that. Droege.” According to plaintiff’s evidence, he reached defendant’s premises about 4:30 o’clock in the morning. It was drizzling rain and was still dark. At plaintiff’s direction the engineer slowly backed the cut of cars over defendant’s switch. At that time the switch track was being extended from day to day, and plaintiff knew the track had not been ballasted, that the ties were simply laid on the surface of the ground, and that the ground was slippery and muddy. While the cars were being backed, two wheels of the rear truck of the leading car ran off the track for a short distance, leaving the wheels on the ties with the rear wheel of the truck near and in line with the rail from which it had dropped. As soon as the derailment occurred plaintiff got off the car on which he was riding, and went to the end of the track. He and his rear man, Howerton, found that the derailment had taken ulace at a point where two rails joined, and that the last rail on
Though it be true that plaintiff was not an employee of the defendant, he was the representative of the terminal company, which had the right to place cars on defendant’s switch as directed by Droege. That being true, he was rightfully on defendant’« premises, and defendant owed him and the other members of the switching crew the duty to exercise ordinary care to have its, switch track in a reasonably safe condition for their use. Anderson & Nelson Dist. Co. v. Hair, 103 Ky. 196, 44 S. W. 658; Branham’s Admr. v. Buckley, 158 Ky. 849, 166 S. W. 618. This proposition of law is not disputed,
As to the contention that plaintiff adopted an unsafe method of re-railing the car, it is sufficient to say that the evidence was conflicting and the question was therefore for the jury.
Nor can we say that plaintiff was guilty of contributory negligence as a matter of law. As before stated, he had a right to act on the assumption that the rail was securely spiked. He took a position behind the car, where he would have been in no danger had the defendant performed its duty. Not knowing that the rail was unspiked, and its condition not being plainly observable,
Lastly, it. is insisted that the verdict is excessive. Plaintiff was thirty-five years of ag'e at the time of the accident and his injuries were such that it was necessary to amputate his leg eight inches below the knee.. Since the cost of living has greatly increased and the purchasing power of a dollar is far less than it used to be, we conclude that the verdict is not excessive. L. & N. R. Co. v. Copley, 177 Ky. 171, 197 S. W. 648; Continental Coal Corporation v. Cole’s Admr., 155 Ky. 139, 159 S. W. 668.
Judgment affirmed.