Louisville & Nashville Railroad v. Bocock

JUDGE HOBSON delivered the opinion op the court. Appellee was a brakeman in appellant’s service. While in the discharge of his duty in making a coupling, he was caught between the cars of the train and his leg cut off. For this there was a verdict and judgment in his favor for the sum of $5,000. The railroad company seeks by this appeal a reversal of the judgment, chiefly on the ground that the facts did not warrant a recovery, and that the instructions of the court below did not properly give the law of the case to the jury. The injury occurred at Asher’s Mill, which is> just south of the station of Pineville. There was a side track there. The train had in it some cars to be left on this1 side track. Appellee got off at the switch, and opened it, and then walked up by the side of the train to the car next to the tender, to uncouple it, so as to shove it and two other cars into the side track. — 227 — When he stepped in between the cars, his lantern was lighted, and hanging on his left arm. The train was moving slowly backwards. He pulled out the pin with his left hand to uncouple the car, and as he did so his lantern went out. He then started to get out from between the cars, and in doing so stumbled, and the brakebeam of the tender ran upon his left foot. He fell, and was dragged thirty or forty feet. His leg and ankle were crushed to above the knee joint. It was dark, and he says the cause of his fall was his stepping into a hole in the track after his lantern went out. It is earnestly argued for appellant that it was negligence in appellee, and contrary to its well-known rules, to go in between the moving cars for the purpose of uncoupling them, and that, at any rate, his injury occurred from a risk incidental to the service; the proximate cause of it being his lantern’s going out, so as to leave him in the dark, and unable to see how to guide his movements. The cause of the lantern’s going out is not explained, but was probably due to his having it on the arm with which he pulled the pin while the train was in motion. On the other hand, it is argued for appellee that the proximate cause of his injury was the fact that the place where he was called upon to discharge his duties was not safe for this purpose, and that his fall was due to the hole into which he stepped in the dark, which defendant should not have suffered to be there. The rule is well settled that in its station yards or yards where trains' are made up the railroad company should have its track reasonably safe for the discharge of such duties as its employes are there required to perform, and to this end such places should be surfaced up, and free from holes endang — 228 — ering- the safety of its employes in the ordinary discharge of their duties. But this rule does not apply to the track of the railroad at other places than such yards. It is notorious that railroad tracks are not usually surfaced up in this State at side tracks for small stations, mills, etc. There is evidence in this case that the track at this point was in the condition as at other similar places along the road, with no hole in it, except the ends of the ties were not surfaced up. In entering- appellant’s service appellee assumed the risks ordinarily incidental thereto. This would include risk of injury from the track not being surfaced up if the place where appellee was hurt was substantially in the same condition as similar localities along the road. (Ragon v. Toledo, &c., Railway Co., 97 Mich., 265, [37 Am. St. R., 336, 56 N. W., 612]; Batterson v. Chicago, &c., Railway Co., 53 Mich., 125, [18 N. W., 584]; 3 Elliott on Railroads, sections 1272, 1296; 2 Shearman & Redfield on Negligence, section 406, notes.) But there was proof for appellee which tended to show that on the day before the accident the section men were at work on the track at this point, and had taken out all flie filling or tamping between the ties; that they went away, and left it in this condition, and, after appellee was hurt, came back the next morning, and filled it up again. If all the tamping was taken out from between the ties, it would leave a deep hole there, which would well cause a man to fall if he stepped in it in the dark while uncoupling a moving train. Such a hole would be peculiarly dangerous, because, the track having been theretofore, according to the evidence for appellant, in good condition, appellee would have no reason to apprehend the danger, as the tamping was not taken out when he went over that part of the track on his last trip. — 229 — In Kansas, &c., Railroad Co. v. Kier, 41 Kan. 661, [13 Am. St. R., 311, 21 Pac., 770], a brakeman sued for injuries received from his stumbling while going in' to uncouple a moving train. For a long time before the time of his injury the ground where the switch was located had been solid and hard. He was well acquainted with its condition, and on the morning of that day, as he went out, had used the switch in its usual good and safe condition; but before his return the company had deposited about the switch several car loads of cinders, and left them in great heaps and piles upon either side of the track, so spongy and soft that a person stepping upon them would sink into them to a considerable depth. On his return, which was after dark, he stepped upon the ground, in ignorance of its changed condition, and by reason of the cinders tripped, and fell between the cars. The cause of his fall was his sinking in the cinders, which rendered it dangerous for him to discharge his duties in the usual way at that switch. It was held by the court that it was the duty of the railroad company to keep its track in a reasonably safe condition, and that it was under obligation to its servants not to induce them to work in a place of danger under the notion that it was safe; that the master assumes the duty towards his servant of exercising reasonable care to provide him with a reasonably safe place at which to work, and that, if the dumping of cinders left the roadbed in a dangerous condition, and Kier, while in the discharge of his duty to uncouple the car, while moving slowly, without any notice of the recent change in the condition of the roadbed was throwm under the train on account of the dangerous condition of the ground at the switch, the railroad company would be liable. — 230 — After citing several cases supporting this conclusion, the court says: “Counsel contended that if the plaintiff was entitled to be notified of the changed condition of the roadbed or yard, then every other employe would be equally entitled to like notice, and therefore that the company would be seriously embarrassed in the operation of its road. As we have already decided that a railroad company is liable to any one of its servants operating its road for the negligence of either one of its servants whose duty it is to keep the road in a reasonably safe condition, and who culpably fails to perform such duty, or to give proper warning, we deem it unnecessary in this case to give further or additional reasons for the support of the law as declared by this court. It would seem to us, however, not very difficult or expensive, if a bridge, track, roadbed, or yard of a railroad company is in a dangerous condition, for the foreman having charge of the section or. work to place thereon at night danger signals like red lights so as to give warning to all the servants or employes of the company.” A similar ruling was made in Lewis v. St. Louis, &c., Railroad Co., 59 Mo., 495, [21 Am. R., 385], where a deep hole had been dug by the side of the track to set a post a day or two before the accident, and left open so that a brakeman in discharge of his duty, without notice of the danger, stepping into it, stumbled, and, falling between the cars, was injured: The court said: “The legal implication is that the roads will have and keep a safe track, and adopt suitable instruments and means with which to carry on their business. They can provide all these by the use of the requisite care and foresight, and, if they fail to do so, they — 231 — are guilty of a breach of duty', and are liable for the consequences. . . . Under this rule' it is held that the companies are liable for the existence of all defects which they knew, or by reasonable care and diligence might have known.” In this quotation the court used substantially the language of Chief Justice Bigelow in Snow v. Housatonic, &c., Railroad Co., 8 Allen, 441, [85 Am. Dec., 720], where a brakeman had been injured by reason of a hole in a plank laid down between the rails at a point where a highway crossed the track, he having stepped into the hole, and fallen, in the discharge of his duty, by reason of it. The removal of. all the ballast or filling from between the ties at the switch where appellee was injured made it necessarily dangerous for a man to go in between the cars at that point, while they were moving, to make a coupling, because, if he did not’ know that the tamping had been taken out, and in moving along with the car should place his foot between the ties in the dark, he would be very liable to stumble and get hurt. Such a condition of the place where he was required to discharge his duty should not have been left without notice to him of the change, because he had a right to assume, until he learned to the contrary, that the place was in its normal or usual condition. If the tamping is removed from such places,1 and can not be replaced before dark, either notice should be given to those servants having occasion to use it in discharge of their duties, or a light should be placed there to apprise them of their danger. The duties of brakemen are peculiarly perilous, and proper regard for human life will not permit that the places where they are to work shall be left in such condition, without their knowledge, ■as to imperil their lives in the necessary rendition of the services assigned them. — 232 — The instructions given on the trial were not in accord with the principles we have stated. The proof showed that appellee had been in the service of appellant for several years, and was familiar with the track at this point. There was no proof of the existence of any hole or defect in the track for which appellant would be liable if it was in its usual condition. Whether it was in its usual condition, or the tamping had all been taken out from between the ties, with no filling left between them, as above described, the proof was very conflicting. Under the evidence the court should have told the jury that in entering appellant’s service appellee assumed all the risks usually incidental to it, and that, if' he was caught and injured by reason of the track not being surfaced up, when it was in its usual condition, as it had been theretofore, appellant was not liable; but that if, shortly before the injury, appellant took the tamping from between the ties, and, without notice to him, left it in a condition more dangerous for the necessary discharge of his duties then might be reasonably expected from the exercise of ordinary care on the part of appellant, and that if, by reason of this, the injury occurred, appellee was entitled to recover, unless he failed to use at the time ordinary care for his own safety, and, but for this, he would not have been injured. Ordinary care is such as may be usually expected of persons of ordinary prudence under like circumstances, considering the perils attendant upon the business. On the return of the case to the court below appellant may be allowed to file its amended answer heretofore tendered so as to plead contributory negligence by appellee in going between the cars and uncoupling the train as he did. Appellant offered in evidence a rule forbidding brakemen — 233 — getting between tlie rails to couple or uncouple cars while in motion. Appellee denied knowledge of the rule, and said it was habitually disregarded by appellant. The rule may be admitted in evidence on another trial, for appellee can not recover if he got between the rails, and so got hurt, in violation of his duty. He was bound by the rule if he knew, or by the exercise of ordinary care ought to have known it. Appellant was not required to read the rule to him, but only to give him a reasonable opportunity to learn it; and had a right to presume he understood, especially after he had been so long in its service, how he was required to discharge his duties. (Alexander v. L. & N. Railroad Co., 83 Ky., 589.) If, however, the rule was habitually disregarded by appellant or its officers superior in authority to appellee, and he was expected by his superior officer to go in between the rails while the cars were in motion, to couple or uncouple them, the rule would be no bar to a recovery in this action. (3 Wood on Railroads, section 382; L. & N. R. R. Co. v. Foley, 94 Kentucky, 220.) The rule may be given in evidence, and the testimony that it was habitually violated with the assent of the company or its officers in charge of appellee, may also be admitted, and it will then be a question for the jury on all the evidence, whether appellee was in the proper discharge of his duty and free from contributory negligence in going between the rails at the time in question to uncouple the cars. Judgment reversed, and cause remanded for a new trial and further proceedings not inconsistent with this opinion.