Louisville & N.R. Co. v. Brice

• Decision Date: 02 October 1886
• Citation: 1 S.W. 483,84 Ky. 298
• Parties: LOUISVILLE & N. R. CO. v. BRICE.
• Court: Kentucky Court of Appeals

1 S.W. 483

84 Ky. 298

LOUISVILLE & N. R. CO. v. BRICE.

Court of Appeals of Kentucky.

October 2, 1886

Appeal from Christian circuit court.

This was an action by Josie R. Brice against the Louisville &amp Nashville Railroad Company for damages for killing her husband. Court below gave her a judgment for $5,000, and the Railroad Company appealed.

HOLT J.

The appellant, the Louisville & Nashville Railroad Company, is asking the reversal of a judgment against it in favor of the widow of J. J. Brice, for $5,000, for the killing of her husband by being run over when engaged in coupling its cars and in its employ as a brakeman, by one of its trains through the alleged willful neglect of its agents. The action is brought under section 3 of chapter 57 of the General Statutes, which authorizes it only when the killing is willful, and which was doubtless enacted to give the same right of action, in the event of death, to the widow heir, or personal representative as the deceased would have had if he had survived the injury.

The petition alleges, in substance, that the deceased was knocked down and run over by the train through the willful neglect of those in charge of it. The answer is a denial, contributory neglect by the deceased being also pleaded. An amended petition was filed, alleging that the deceased, when killed, was, by the direction of the conductor in charge of the train, coupling a car improperly loaded with lumber; that it projected beyond the end of the car so much as to interfere materially with the coupling of it, and to endanger the life of one undertaking to make the coupling; and that her husband was knocked down by the lumber, and then run over and killed.

It clearly appears that the train was, at the time of the accident, being operated prudently; and the question presented is, what is the liability of the company, under the statute, when death results to one of its servants from handling a car not properly loaded? It does not clearly appear in this instance whether it was loaded by the appellant or the shipper, but probably by the latter. The appellant asked the court to direct a special verdict only. This the court refused to do. It ordered a special verdict, but a general one also, giving instructions to the jury. This was not error. It was bound to direct a special verdict when asked, but it had the right, under the Code of Practice, and it was in its discretion, to also order the jury to find a general one. Empire Coal, etc., Co. v. McInstoch, 82 Ky.--.

The special verdict, aside from fixing the amount of damage, found but three facts, to-wit: First, that the lumber did so far project beyond the end of the car as to materially interfere with the space necessary to enable the brakeman to make the coupling; second, that the injury to the deceased resulted from it; and, third, that he did not know of the improper loading, and did not have an equal opportunity with the others operating the train to know it. Special findings must be treated like a general verdict. They will not be disturbed unless flagrantly against the evidence. They are not so in this instance. Therefore, without further discussion, we will accept them as true; and the first question to be determined is, did they authorize the judgment?

When special findings are directed, it should be as to every fact necessary to make...