Citation Numbers: 185 Ky. 584
Judges: Clay
Filed Date: 10/3/1919
Status: Precedential
Modified Date: 7/24/2022
Opinion of the Court by
Affirming.
O. L. Manuel brought this suit against the Louisville & Nashville Eailroad Company to recover damages for personal injuries. At the conclusion of plaintiff’s evidence the court directed a verdict in favor of the defendant. Plaintiff appeals.
Defendant’s line of railway is double-tracked from Corbin to Sinks, and is single-tracked from Sinks to a point about a mile south of Winchester where the double track begins again and and continues to Cincinnati. Ascending from the Kentucky river towards Winchester there is a steep grade. On this grade the line is single-tracked, and in order for- trains to pass each other at Flanigan, it is necessary to take the siding at that point. According to plaintiff’s evidence it was impracticable to stop a heavy freight train for the purpose of entering this siding, and therefore customary for the head brakeman to turn the switch leading into the siding while the train was in motion. On the occasion of the accident, which occurred on the night of November 26,1916, plaintiff was acting -as head brakeman upon an interstate freight train consisting of two engines and forty-five cars, bound from Corbin to Covington. The train stopped at Shearer, which is a few miles south of Winchester, to get water and a “19 order,” which apprised those in charge of the train that southbound passenger train No. 31 was on time, and that it was necessary for the freight train to take a siding in order to let it pass. Upon receiving the order the engineer of the front engine said to plaintiff, “I think I can get to Flanigan, provided one of you boys throw the switch and not stop me.” Plaintiff replied, “I will be up on the engine helping the fireman, and I will get the switch for you. ’ ’ After the train got under way, the engineer again asked plaintiff if he would get the switch and not stop him, and plaintiff said:
Harry Gr. Meiners, a civil engineer, testified that the underpass was 893 feet from the switch. He further testified that there was ballast between the ties over the trestle, and that the trestle was of the kind ordinarily in use at such places.
Charles GL Moore, a brakeman in the employ of defendant, testified that if the train was going about six miles an hour a brakeman would need about 200 yards in order to have time to get off the train and run ahead and throw the switch.
The case arises under the Federal Employers’ Liability Act. Ordinarily, a- railroad company is not liable for an injury to an experienced brakeman or switchman, caused by his falling into an open culvert or -drain. Haggerty v. Chicago, M. & St. P. R. Co., 141 Fed. 966; Lindsay v. New York, N. H. & H. R. Co., 112 Fed. 384. But it is insisted that this rule should not apply to the facts of this case because plaintiff and other head brakemen were required to get off . the moving train, and run -along the track in- front of the train for the purpose of
Judgment affirmed.