179 Ky. 405 | Ky. Ct. App. | 1918
Opinion op the Court by
Affirming.
The appellant, Woods, received. injuries while assisting as a track repair hand, in putting a hand-car of the appellee company on the track, and to recover damages for the injuries sustained, he brought this suit.' At the conclusion- of the evidence for Woods, the trial judge directed a verdict for the company, and Woods appeals.'
In the petition it was charged that the railway company was engaged in interstate commerce, and that Woods was employed by it in such commerce at the time he was injured, and here we may stop to say that there is no dispute about this. It was further. averred that during one night in September he and other section hands of the company were ordered by the foreman to put a hand-car on the track for the purpose of going to repair some track at a place where it needed attention; that while so engaged he was struck by the hand-car and fell on and against the rails or track and was injured; “That said hand-car was caused to strike and injure the plaintiff as aforesaid by the gross negligence of said employes in the manner and way they handled said hand-car, and the gross negligence of said foreman in ordering ah insufficient number of men to handle same, and gross negligence of the defendant in not having a sufficient number of men to handle said hand-car at said time and place, and his injuries, caused as aforesaid, were due to and caused by each and all of said acts of negligence aforesaid.”
It will thus be seen that two grounds of negligence were set up: First, the negligence of appellant’s co-laborers in the manner in which they handled the car; and, second, the negligence of the company and its foreman in failing to have a sufficient number of men to handle it with safety.
The evidence shows that on the night' in question Woods and eleven other track repairmen, who it appears were sleeping in boarding cars on a siding, were ordered
Woods in his. own behalf said that when Hicks, the foreman, woke him up and said he wanted the men to go to the place where the track was out of repair, he seemed to be in quite a hurry and told him to hurry up and get out; that he wanted twelve men to go; that he woke up some of the men and came back and finished
Sam Napier, one of the men who waá helping put the hand-car on the track, said that four meii had hold of the car, Lane and Woods in front and himself and Campbell behind; that he was shoving the car when Woods fell; that all of the men were stout, healthy men.
Millard Lane, the only other witness, said the men were called out by Hicks and told to get the car on the track as quick as they could; that twelve men were called out and four of them had hold of the car and the others were around; that Woods told him afterwards that he did not know whether he fell because his pants’ leg hung on something or because he stumbled over the rail; that the car was carried between eight and’ ten feet and Woods fell after they had crossed one track; that after Woods fell another man- took his place and then the four handled the car and put it on the right track.
Supplementing what has been already said, it appears from this evidence that the only orders the foreman, Hicks, gave were to wake up twelve men to go on the hand-car and to hurry and get the hand-car. He
The fact that these men were engaged in interstate commerce does not help the case for Woods-, because in no state of case can there be a recovery unless the railroad company has been guilty of negligence of some kind or another through some employe or another, and, there is no evidence or fair inference to show that either the company or any of its employes was guilty of negligence. The fall of Woods was due entirely to the fact thát he either stumbled or slipped in crossing the tracks —it was a pure accident for which no one could be blamed.
Putting the car on the track was a very simple thing, and Wood's was thoroughly familiar with the méthod of doing it, as he had assisted many times in' taking it off and putting it on the track. If four men were not enough to lift and carry it with safety, and there should have been eight men, this was not thé fault of the foreman, as he gave no directions whatever as to how many men should assist in putting the car on the track and was not immediately in charge of the work. Other men were standing about, and evidently the four men who had hold of the car did not think the assistance of the others was needed or they would have called on them. That they were not needed is also made clear by the fact (that the car was carried several feet by Woods and the other men, and after he fell and became disabled, another man took his place and these four took the car to the track on which it was to be put.
In all cases in which a directed verdict is ordered, it ‘ is necessary that we should, and we do, carefully read and consider the whole of the evidence for the purpose of determining whether the ruling of the trial court in taking the case from the jury was correct, because this is the only question in such cases. In this case we have observed this practice and fail to find any evidence or reasonable inference therefrom that would warrant ua in ruling that the trial judge committed error.
Wherefore, the judgment is affirmed.