Kentucky Cent. R. R. Co. v. Gastineau's Adm'r

• Citation: 7 Ky.L.Rptr. 3,83 Ky. 119
• Parties: Kentucky Central R. R. Co. v. Gastineau's Adm'r.
• Decision Date: 03 June 1885
• Court: Court of Appeals of Kentucky

83 Ky. 119

7 Ky.L.Rptr. 3

Kentucky Central R. R. Co. v. Gastineau's Adm'r.

Court of Appeals of Kentucky.

June 3, 1885

APPEAL FROM FAYETTE COURT OF COMMON PLEAS.

BRECKINRIDGE & SHELBY FOR APPELLANT.

1. Where a stranger comes upon ground to which the right of a railroad company is exclusive, and voluntarily assists its employes in the performance of a dangerous work, the company is not liable for an injury resulting to him from the negligence of its employes, unless, perhaps, the negligence be " " willful," and be after the discovery of his danger. (Flower v. Penn. R. R. Co., 69 Pa. St 210, 8 Amer. Rep., 251; New Orleans, etc., R. R. Co. v Harrison, 48 Miss. 112, 12 Amer. Rep., 356; Canley v. Pittsburg, etc., Ry. Co., 96 Pa. St., 398, 40 Amer Rep., 664; Sherman v. Hannibal, etc., R. R. Co., 72 Mo. 62; Everhart v. Terre Haute, etc., R. R. Co., 78 Ind. 292?? 41 Amer. Rep., 567; 1 Addison on Torts, section 566; Mason v. Missouri Pacific Ry. Co., 27 Kans 83, 41 Amer. Rep., 405; P. & R. R. R. Co. v. Hummell, 44 Pa. St., 375; Degg v. Midland R. R. Co., 1 Hurlst. & Norm., 773; Carter v. L. & N. R. R. Co., 4 Ky. Law Rep., 825; B. & O. R. R. Co. v. Schwindling, 22 Amer. Law Reg., 453; General Statutes, chapter 57, section 1.)

2. A person voluntarily assisting the employes of another in their work, sustains himself quoad hoc, the relation of servant to their employer, or at least a relation no more favorable than that of servant; and if the employer be a railroad company, it is, under our express statute law, not liable for the death of such volunteer, caused by the ordinary neglect of its employes. (General Statutes, chapter 57, section 1.)

3. As to definition of " willful neglect," given by lower court. (L. & N. R. R. Co. v. Filbum's Adm'r, 6 Bush, 580; Board of Int. Imp. v. Scearce, 2 Duvall, 579; Jacobs v. L. & N. R. R., 10 Bush, 273.)

4. As to definition of compensatory damages given by lower court. (L., C. & L. R. R. v. Case's Adm'r, 9 Bush, 737.)

HARGIS & EASTIN FOR APPELLEE.

1. A railroad company can not escape liability for injury to an infant of tender years, simply because the infant voluntarily placed himself in a perilous position. If the agents of the company knew of the peril and consented to it, that of itself was a continuing act of negligence, for which the company is liable. (L. & N. R. R. Co. v. Wolfe, 80 Ky. 85.)

2. The plaintiff may recover, notwithstanding his own negligence exposed him to the risk of injury, if the defendant, after becoming aware of the plaintiff's danger, failed to use ordinary care to avoid injuring him. (Sherman & Redfield on Negligence, sections 36, 37; Lafayette, etc., R. R. Co. v. Adams, 26 Ind. 76; L. & N. R. R. Co. v. Collins, 2 Duv., 116; L. & N. R. R. Co. v. Sickings, 5 Bush, 4; L. & N. R. R. Co. v. Filbum, 6 Bush, 575; L. C. & L. R. R. Co. v. Mahoney, 7 Bush, 239; P. & M. R. R. Co. v. Hoehl, 12 Bush, 43.)

3. The instructions, when considered together, do not require the jury to give punitive damages, but if they do they are not erroneous, as the statute provides that the plaintiff in such actions " shall have the right " to recover punitive damages. (General Statutes, chapter 57, sections 1 and 3; L. & P. Canal Co. v. Murphy, 9 Bush, 526; Chiles v. Drake, 2 Met., 151.)

4. The definition of " willful neglect" is not objectionable. (Jacobs' Adm'r v. L. & N. R. R. Co., 10 Bush, 273; L. & N. R. R. Co. v. McCoy.)

BRONSTON & KINKEAD ON SAME SIDE.

1. As the act of appellant's servants, in permitting the boy to be about the cars, was a continuing act of negligence, they are to be held to have been aware of his danger from the time he was first seen upon the cars, or at least from the time he was ordered to couple them, and, therefore, it would not have been proper to instruct the jury that appellant must, after his negligence, have become aware of the danger and then have failed to use proper care. (L. & N. R. R. Co. v. Wolfe, 80 Ky. 85; Jacobs' Adm'r v. L. & N. R. R. Co., 10 Bush, 273.)

2. Willful neglect was properly defined. (Board of Int. Imp. Shelby Co. v. Scearce, 2 Duv., 576; City of Lexington v. Louis, 10 Bush, 680.)

3. As to compensatory damages. (Sedgwick on Measure of Damages, section 35; Parks v. Jenkins, 3 Bush, 587; Sherman & Redfield on Negligence, section 606; L. C. & L. R. R. Co. v. Case's Adm'r, 9 Bush, 736.)

OPINION

HOLT JUDGE:

Robert M. Gastineau, a boy between fourteen and fifteen years of age, was run over and killed by a car of the appellee, which he was endeavoring to uncouple from a train, while switching in the company's yard. In this action by his administrator for damages, the jury found a general verdict for five thousand dollars; and also, by a special verdict, found that the deceased, when killed, was voluntarily assisting the employes of the road, with their knowledge and consent, in switching the cars; that they discovered his peril, but too late to prevent his death; and that he contributed to it by his presence and effort to uncouple the car.

The lower court refused to render a judgment for the appellant upon the special verdict, and sustained the general one; and upon this appeal the special findings must be treated as true.

If the deceased could be regarded as the servant or employe of the company at the time of his death, then, being engaged in a common service with its other employes, the company would not be liable for the neglect of the latter unless it were willful, and in the course or purpose of the employment. But he did not, in a legal sense, occupy that relation, and was to it a stranger; and in this light the rights of the parties must be viewed.

A railroad company has the right to the exclusive use and occupation of its yard or track, except at crossings or such places as the public are, by law, authorized to use; otherwise, it could not properly perform its duties to the public. It is not required to anticipate the intrusion of others; and one who enters upon them without right, does so at his peril; and, in case of injury, can not recover, unless it was wantonly inflicted after the danger was discovered. Its duty to such a person or a trespasser is merely negative--it must not, when it knows of the peril, act maliciously or with a disregard of obvious consequences. It is not required to use care to anticipate and discover the peril to such a person, but only to do so after the discovery of the danger. Until then no legal duty is imposed upon it, because no one, by a wrongful act, can impose a duty upon another.

It is urged, however, that this case, by reason of the age of the deceased, and his presence upon and about the train with the knowledge of the company's employes, is not governed by the above rule; that it was the duty of the company to prevent his being there; that his age, and the numerous dangers incident to railroading, placed him in constant peril when upon or about the train, even if not engaged in coupling or uncoupling the cars; and that the company, therefore, discovered his danger in time to have saved him, although the immediate peril arising from his effort to uncouple the cars was not known in time to do so. Our sympathies must not be permitted to decide this question. If so, we might do injustice to others, and override fixed rules and principles essential to equal justice.

Without having in view, for the present, the age of the deceased, we remark that the fact that a mere employe knows of the presence of the intermeddler does not legalize it, and so place him as to the company, and within its protection, that it is bound to anticipate and ascertain if he has placed himself in danger, instead of merely being bound to use reasonable care to avert it after its discovery. It has been held that even a request to one, by an employe of the company, to do some act connected with the management of a train, does not impose such a duty upon or render the person less an intermeddler as to the company; and certainly this is so, if the employe has no authority from the company to make the request, or does not occupy such a position toward it and the act to be done, that the authority can be fairly implied. (Everhart v. Railroad Co., 78 Ind. 292; Railroad Co. v. Harrison, 48 Miss. 112; Flower v. Railroad Co., 69 Pa. 210; Degg v. Midland R. Co., 1 H. & N., 773; Mason v. R. Co., 27 Kansas, 84.)

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