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Louisville & N. R. Co. v. Young's Adm'x

December 19, 1952


Sims, Justice.


Appellee, Lillie Mae Young, as administratrix of her deceased husband, Alex J. Young, sued the Louisville & Nashville Railroad Company under the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq., for $150,000 damages for the death of her husband alleged to have been caused by the negligence of appellant on March 3, 1950. The trial resulted in a verdict in favor of her and her four infant children in the sum of $60,000, which the jury allotted to Lillie Mae (widow) $19,500, Pricilla $7,500, Alex Jr., $9,000, Audrey $11,000 and Glen $13,000. To reverse the judgment entered thereon the Company assigns three errors: 1. The verdict is not supported by the evidence; 2. the court erred in giving and refusing instructions; 3. the damages awarded are excessive.

Young was employed by the Company as a laborer in its yards at Decoursey in Kenton County. About 11:00 o'clock on the morning of March 3, 1950, while he was attempting to unhook a car spring weighing from 450 to 500 pounds which was being lowered into a skid box by an electric crane operated by E. L. England, the boom cable snapped which caused the boom of the crane to fall on Young, who died two days later as a result of his injuries.

The petition set out the age of deceased as 31, that of his widow as 26 and of his four infant children as 9, 6 and 3 years, and a baby of nine months. The answer admitted the ages of the widow and of the children, but denied Young's age and that his death was caused by the Company's negligence, and contained affirmative pleas of contributory negligence and assumption of risk upon the part of Young. A reply denied these affirmative pleas. It may be well to here state that § 54 of the Federal Employers' Liability Act provides that no employee shall be held to have assumed the risk of his employment in any case where his injury or death resulted in whole or in part from the negligence on the carrier, or where the violation by the carrier of any statute enacted for the safety of the employee contributed to his injury or his death.

The alleged negligence of the Company upon which appellee relied is that the boom cable was defective or insufficient for the purpose for which it was being used. The proof shows this crane had an 18 foot boom which was supported and controlled by a 3/8 inch wire cable of three strands twisted together into one piece and each strand was composed of 40 or 50 small wires. The crane carried another similar cable which handled the load. It was the boom cable which snapped and that is the one with which we are concerned. The crane had a capacity of 3 tons but there was proof that at times loads up to 8 tons were handled by it. The crane was overhauled in Louisville in December 1949, but no new cable was put on it then, and the crane was returned to the Decoursey yards early in January 1950. England testified for appellee and stated a new cable had been put on the boom in 1949, in less than 8 months before the accident.

England, the operator of the crane at the time of the accident, was the sole witness for appellee that the cable was defective. He testified that on the morning of the accident he inspected the cable for his own safety, as he did every morning, and it was 'very thin, very small', and he told J. W. Stephens, roundhouse foreman, about 8 o'clock the morning of the accident that the cable 'should be inspected, we need a new cable on it. * * * Stephens told me he had had the engineer take care of it and he would take care of it'. England further testified that the cable, which was exhibited on the trial, 'is drawn down thin, I would say from a thirty-second to the size of three-eights'; that heavy loads would stretch the cable and weaken it, and that the cable 'snapped due to the use and abuse of the cable'.

On cross-examination England was asked if he had not made a report on the accident in which nothing was said about him noticing any defect in the cable. He replied, 'there was something said about it, but it was not put into that statement that I made to the Master Mechanic Carl Wolfing'. The following appears in the cross-examination of the witness in reference to the signed statement he made four days after the accident to H. G. Breetz, a claim agent of the Company:

'Q. Now -- talking about the cable -- 'After the accident I saw that the boom had been allowed to fall by the pulling apart of the cable. There was nothing to indicate that there were any old breaks in the cable but where it pulled apart it looked like all the wires were freshly pulled apart.'? A. Yes.

'Q. 'The block carried the weight of the material that you are handling, but the boom carries the weight of the whole load and I am totally unable to account for this cable pulling apart especially in doing so immediately after the weight of the spring was taken from it.' You made that statement? A. Yes.

'Q. 'The boom cable winds on a drum and runs through pulley blocks and there was nothing wrong with them to have caused any undue wear of the cable.' You made that statement? A. Yes.'

On redirect examination England stated he answered questions by Breetz but the latter wrote the statement in his own words.

All the testimony is to the effect that this cable showed no old break, which would have been evidenced by the ends of the wires in the cable curling. And it was conclusively proven that J. W. Stephens, the roundhouse foreman to whom England testified he complained of the cable on the morning of the accident, was out of the State from February 19 until March 4 and England could not possibly have asked him to have the cable inspected.

Appellant argues that England's testimony on cross-examination so contradicted that given on his direct examination as to amount to a withdrawal of it, citing Bass v. Com., 232 Ky. 445, 23 S.W.2d 926, and Great Northern Life Ins. Co. v. Cazner's Committee, 282 Ky. 515, 139 S.W.2d 424. While there are statements made by England on cross-examination which conflict with what he said on direct examination, the statements are not so contradictory as to destroy his value as a witness. England's contradictory statements are nothing like so glaring as those made by the witnesses in the Bass and Cazner cases. In the circumstances it was for the jury to determine the credibility of the witness and the probative value to be given his testimony. Short Way Lines v. Sutton's Adm'r, 291 Ky. 541, 164 S.W.2d 809; City of Paducah v. Brunnhoper, 281 Ky. 177, 135 S.W.2d 413.

It is next insisted by appellant that as the crane just preceding handling this spring had handled a much heavier load without difficulty, and as the Company had no notice that the cable was not in reasonably safe repair, it is not liable for any defect therein which had never been brought to its notice, or which it could not have discovered by the exercise of ordinary care, citing Louisville & N. R. Co. v. Wright, 199 Ky. 422, 251 S.W. 188. That was a case where Wright was injured as the result of a hole in a crossing maintained by the railroad, and we held as the company had no notice of the hole and as there was no proof that it existed long enough for notice to be imputed to the railroad company, it was not liable. That case is not controlling here. Anybody or anything could have made that hole without the railroad's knowledge. Here, the Company furnished a tool to Young in the form of this crane with which to work. While it was not an ...

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