Louisville & N. R. Co. v. Brooks' Adm'x

• Citation: 7 Ky.L.Rptr. 110,83 Ky. 129
• Parties: Louisville and Nashville Railroad Company v. Brooks' Adm'x.
• Decision Date: 11 June 1885
• Court: Court of Appeals of Kentucky

83 Ky. 129

7 Ky.L.Rptr. 110

Louisville and Nashville Railroad Company v. Brooks' Adm'x.

Court of Appeals of Kentucky.

June 11, 1885

APPEAL FROM MARION CIRCUIT COURT.

WM LINDSAY FOR APPELLANT.

1. In actions under section 3 of chapter 57, General Statutes, for willful neglect, the jury may or may not, in their discretion, give punitive damages, and it was error in this case to instruct the jury that they " should " give punitive damages, if they should find willful neglect. (General Statutes, chapter 57, section 3; Act 1854, 2 Stanton's Rev. Stats., page 510; L. C & L. R. R. Co. v. Case's Adm'r, 9 Bush, 783; Chiles v. Drake, 2 Met., 152; M. & L. R. R. Co. v. Herrick, 13 Bush; Sedgwick on Measure of Damages, 7th ed., vol. 1, page 53; Bouvier's Law Dictionary, vol. 1 page 561; Kountz v. Brown, 10 B. Mon., 586.)

2. The verdict is not supported by the evidence. The killing of a brakeman on a railroad train, while he is engaged in the discharge of his duties as such, does not raise the presumption of negligence on the part of the officers having the general management of the train. (Sullivan's Adm'r v. L. & P. Bridge Co., 9 Bush, 88, 89; Pierce on Railways, page 382; Sherman & Redfield on Negligence section 99; Ill. Central R. R. Co. v. Houck's Adm'r, 72 Ill. 286; Central R. R. & B. Co. v. Kelly, 58 Ga. 114; M. & O. R. R. Co. v. Thomas, 42 Ala. 672; L. W. & W. R. R. Co. v. Moore, 72 Ill. 217; Kansas Pacific R. R. Co. v. Salmon, 11 Kansas, 83.)

3. In such a case as this, where contributory neglect can not be relied on as a defense, a verdict ought not to be upheld merely because there was some evidence before the jury to support it. (Baulec v. N. Y. & H. R. R. Co., 59 N.Y. 366; Cotton v. Wood, 8 C. B., N. S., 568; Avery v. Bowden, 6 E. & B., 973; McMahon v. Leonard, 6 H. of L. Cases, 970, 993.)

4. The engineer and brakeman were in a common employment, the one not superior or subordinate to the other, and, therefore, the common employer is not liable for an injury to one by the neglect of the other. (L. C. & L. R. R. Co. v. Cavens' Adm'r, 9 Bush, 565, 566; Doyle v. Swift Iron and Steel Works, MS. Op., May 24, 1883; Randall v. B. & O. R. R. Co., 109 U.S. 478.)

ROUNTREE & LISLE ON SAME SIDE.

1. It was error to instruct the jury that they " should " find punitive damages, that being a matter in their discretion.

2. Punitive damages are composed of two elements-- actual compensation, and compensation for the manner in which the injury was inflicted; therefore, the measure of damages should have been defined to the jury. (Chiles v. Drake, 2 Met., 151; Day v. Woodworth, 13 Howard, 371; Case v. L. C. & L. R. R. Co., 9 Bush, 736; L. C. & L. R. R. Co. v. Mahoney's Adm'r, 7 Bush, 238.)

3. Contributory neglect may be relied upon as a defense in actions under the statute for willful neglect. ( Sullivan's Adm'r v. Louisville Bridge Co., 9 Bush, 88; Lou. & Port. Canal Co. v. Murphy's Adm'r, 9 Bush, 530; Digby v. Kenton Iron Co., 8 Bush, 168; Board of Improvement v. Scearce, 2 Duvall, 579.)

4. The verdict is not supported by the evidence. Actions like this are highly penal in their character, and the plaintiff can not make out his case by mere inferences or guesses. He is required to show the acts willful in their character, and the death the necessary result thereof. (City of Lexington v. Lewis' Adm'x, 10 Bush, 680; Day v. Toledo, etc., Railway Co., 42 Mich. 523; Phil. and Reading R. R. Co. v. Schertle, Thompson's American and English R. R. Cases, vol. 2, page 158; Board of Int. Imp. v. Scearce, 2 Duv., 577; Jacobs' Adm'r v. L. & N. R. R. Co., 10 Bush, 272.)

5. The courts readily supervise the verdicts of juries in cases like this. (L. & Port. R. R. Co. v. Smith, 2 Duv., 557; L. & N. R. R. Co. v. Fox, 11 Bush, 516.)

6. It is settled that passenger carriers are not insurers of the safety of passengers. (Ky. Cent. R. R. Co. v. Dils, 4 Bush, 593; L. & N. R. R. Co. v. Sickings, 5 Bush, 1; 2 Redfield on Railways, page 240; Shoemaker v. Kingsbury, 12 Wallace, 369.) Certainly, then, they are not insurers of their employes.

TEMPLE BODLEY FOR APPELLEE.

1. The statute under which the recovery was had in this case is not unconstitutional because it requires punitive damages to be awarded. (Chiles v. Drake, 2 Met., 151.)

2. Contributory neglect is affirmative matter to be affirmatively pleaded and proved by the defendant, and is not presumed. (Louisville and Portland Canal Co. v. Murphy, 9 Bush, 529; P. & M. R. R. Co. v. Hoehl, 12 Bush, 41; K. C. R. R. Co. v. Thomas, 79 Ky. 160.)

3. Only willful contributory neglect could exonerate the defendant. (L. & N. R. R. Co. v. McCoy, 5 Ky. Law Rep., 405; Claxton v. Lexington and Big Sandy R. R. Co., 13 Bush, 642.)

4. The statute imperatively requires the jury to give punitive damages in cases of this character. It expressly says that the plaintiff " shall have the right to recover punitive damages."

5. The rule respondeat superior applies in cases of willful neglect resulting in death, although the fellow-servants were co-equals. (L. & N. R. R. Co. v. Filbern's Adm'x, 6 Bush, 579.) This case is not discredited by the case of L. C. & L. R. R. Co. v. Cavens' Adm'r, 9 Bush, 565.)

6. The evidence shows that the death of the plaintiff's intestate resulted from the willful neglect of the defendant's agents.

J. PROCTOR KNOTT AND S. B. BERRY ON SAME SIDE.

OPINION

LEWIS JUDGE:

This is an action by appellee, personal representative, to recover damages for the destruction of the life of Charles Brooks, by the alleged willful neglect of appellant's agents and servants; and judgment having, in accordance with the verdict of the jury, been rendered for $10,000, a reversal is asked upon three grounds:

1st. That the verdict is not sustained by the evidence, and is contrary to law.

2d. The damages awarded by the jury are excessive, appearing to have been given under the influence of passion or prejudice.

3d. The court erred in giving the instruction asked for by appellee.

The deceased lost his life at Lebanon while in the employment of appellant as brakeman on a freight train, consisting of twenty-four loaded cars, which had arrived there after night-fall, an hour or more behind time, on the way to Louisville.

The train was stopped on the main track near the depot, and the engine, attached to some of the cars, was moved to the side-track, leading to the depot, for the purpose of leaving a car and taking another, and also to obtain a supply of sand, the other portion of the train having been cut off and left on the main track. But after reaching the side-track the engineer discovered that it was impossible for the engine to push the number of cars he had attached, on the wet rails, up the ascending grade, and was, consequently, compelled to return to the main track and leave some of them. After the necessary transfer of cars was made and sand obtained from the depot, the train was again united, and left for Louisville; and some time afterwards Brooks was discovered lying near the main track, dead.

It was a dark, rainy night, and no witness saw the deceased killed; nor did those connected with the train know it until informed by a telegram sent to the conductor, at a station some distance from Lebanon. Whether his life was lost by the alleged willful neglect must, therefore, from necessity, be determined by the attendant facts and circumstances proved. And it seems to us evident, that if it was so destroyed, it must have occurred while he was in the discharge of his duty as brakeman, coupling or attempting to couple the two parts of the train, and resulted from the great violence with which they were made to come in contact, or the unnecessary and reckless continuance of the driving force of the engine after they had come together. No other theory is suggested in behalf of appellee, nor is there any evidence showing his life was destroyed in any other way that could render appellant liable.

It is placed beyond question that he was run over by the train. A broken lantern, evidently used by him, was found near the track; sixty feet or more south of it was his body, which had been dragged across thirty-two cross-ties; and between the two, but nearest the lantern, was his hat.

At the place where the trail of his body on the cross-ties began was blood, and two witnesses saw indentations there, just inside the north rail--one, as if made by a boot-heel wrenched in the ground, and the other, an impression of a person's knee. And this was about where the train was first cut, and where it was the duty of the deceased, as rear brakeman, to be, in order to couple the cars, if necessary for any one to do so. There is, however, evidence tending to show that the coupling-pin was fixed in such way, by the conductor, as to drop into its place, coupling the cars, when they came together, without human aid. And from that fact the inference is attempted to be drawn, that there being no necessity for the deceased to be there, he was not between the cars for the purpose of coupling, but was there by his own negligence or for some different purpose. But the train was cut in two places on the main track, and it does not clearly appear at which one of them the pin was adjusted; nor, if it was at the place the deceased was killed, that he was informed of it by the conductor.

In our opinion it can be reasonably inferred that the deceased was at the time, not only at the place for the purpose of performing his hazardous duty of coupling the front to rear portion of the train, but was on the track between the two cars to be coupled, actually so engaged; and, as he had his lantern with him, the conductor, as well as the engineer, might have ascertained before backing the train, as it was their duty to...