Chesapeake & O. Ry. Co. v. Kennard
| Decision Date | 24 February 1928 |
| Citation | 3 S.W.2d 649,223 Ky. 262 |
| Parties | CHESAPEAKE & O. RY. CO. v. KENNARD. |
| Court | Kentucky Court of Appeals |
Appeal from Circuit Court, Lewis County.
Action by Sam Kennard against the Chesapeake & Ohio Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.
Browning & Reed, of Ashland, for appellant.
Allen D. Cole, of Maysville, and Norman W. Bowman, of Vanceburg for appellee.
On February 10, 1925, the appellee and plaintiff below, Sam Kennard, who was 46 years of age, was a member of a carpenter's crew working for the appellant and defendant below, Chesapeake & Ohio Railway Company. At the time of the accident of which he complains in this case he and a fellow workman by the name of Dean were engaged in riveting steel or iron plates to the girders of a portion of the railroad bridge at Covington across the Ohio river, and they were stationed on one of the double tracks of the appellant laid on that bridge. The work was done with a rivet hammer operated by compressed air, and when in action it produced a constant and very loud noise. The work also required the one engaged in it to focus his attention, as well as his vision upon the rivet being driven and the hammer. While plaintiff was engaged in operating one of the hammers, the Maysville accommodation passenger train backed across the bridge from Cincinnati and collided with him, producing the injuries to recover damages for which he filed this action against defendant in the Lewis circuit court. The negligence relied on in the petition was the failure of defendant's servants on the colliding train to observe legal and proper care for plaintiff's protection, and the failure of the foreman of his crew to take proper precaution to protect him while engaged in that character of work at the place where he was required to perform it. The answer was a denial with pleas of contributory negligence and assumption of risk, both of which were denied by a reply, and upon trial there was a verdict in favor of plaintiff for the sum of $10,000. Defendant's motion for a new trial was overruled, and from the judgment pronounced on the verdict it prosecutes this appeal, urging through its counsel three grounds for reversal, which are: (1) Incompetent evidence introduced by plaintiff over its objections; (2) improper instructions; and (3) that the verdict is excessive.
The alleged erroneous evidence complained of under ground (1) consisted of parol testimony with reference to the contents of a rule promulgated by defendant and under which plaintiff was working at the time, without first introducing or offering to introduce the rule, or showing why plaintiff was unable to do so, and the cases of L. & N. R. R. Co. v. Pearcy (Ky.) 121 S.W. 1037 (not elsewhere reported); L. & N. R. R. Co. v. Pearcy, 140 Ky. 677, 131 S.W. 1036; and L. & N. R. R. Co. v. McCoy, 177 Ky. 415, 197 S.W. 801, are relied on in support of that contention. The substance of those opinions on the point under consideration is as stated in 140 Kentucky (opinion) that:
"The law, as we understand it, is that when there is a written or printed rule, it is the best evidence, and if obtainable should be introduced. In other words, the same principles of evidence apply to written and printed rules as do to other matters that are written or printed.
There can be no fault found with that universally established principle of the law relating to the production of evidence but the question here is: Did the court fail to observe it, and, if so, was it of sufficient prejudice to authorize a reversal therefor? The rule of defendant attempted to be so proven was one requiring the putting out of a red flag or watchman to warn and signal approaching trains and to thereby protect the carpenter force when operating the air compressor in performing the character of work in which plaintiff was engaged at the time from a collision with approaching trains. The questions eliciting the testimony complained of contained an inquiry, not only with reference to a rule of the company on that subject, but also as to the custom of the company under such circumstances. The witness answered that it was customary to take such precautions for the protection of the crew while so engaged, because, as explained, the work was of such a nature and accompanied with such loud noise that those engaged in it were prevented from hearing the approach of a train and were largely prevented from seeing its approach, since the work required constant focusing of vision on the operation of the rivet hammer. If there was such a custom, as was uncontradictedly proven, then plaintiff had the right to rely on it regardless of the fact as to whether it had been incorporated in a written or printed rule. Moreover, defendant's witnesses when on the stand admitted the existence of such a rule, and there was no evidence to the contrary. Furthermore, in the case of Bradas v. Henry Vogt Mach. Co., 175 Ky. 803, 194 S.W. 1044, a question very analogous to the one here involved was before this court. The operation by the injured servant in that case of the device that he was working produced considerable noise, as well as an obstruction of his vision by the creation of flying dust, and we held that, independently of any rule, and under a well-established principle of the law of negligence, it was the duty of the employer to adopt some means of warning against possible danger from the operation of other machinery that might injure plaintiff. That being true, the fact that plaintiff in this case sought to...
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