Chesapeake & O. Ry. Co. v. Dwyer's Adm'x

• Decision Date: 25 February 1914
• Citation: 157 Ky. 590,163 S.W. 752
• Parties: CHESAPEAKE & O. RY. CO. v. DWYER'S ADM'X
• Court: Kentucky Court of Appeals

163 S.W. 752

157 Ky. 590

CHESAPEAKE & O. RY. CO. v. DWYER'S ADM'X

Court of Appeals of Kentucky.

February 25, 1914

Appeal from Circuit Court, Boyd County.

Action by Richard Dwyer's administratrix against the Chesapeake & Ohio Railway Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded for new trial.

Worthington Cochran & Browning, of Maysville, for appellant.

Dinkle & Prichard and George B. Martin, all of Catlettsburg, for appellee.

SETTLE J.

Richard Dwyer, who was a locomotive engineer in the employ of the appellant, Chesapeake & Ohio Railway Company, was killed May 12, 1910, at England Hill in Boyd county, Ky. by the derailment of a part of a train upon which he was at the time employed as such engineer. The train was a freight train being operated by two engines; the second engine being the one of which the decedent had charge. At the place of the accident the railroad track is located in a cut, the banks of which arise in height several feet above that of a train. The accident was caused by a landslide from one side of the cut which caused rocks and earth to be deposited upon the track in such quantities that when struck by the moving train the two engines and several cars thereof were derailed and the decedent, being thrown under the engine of which he was in charge, received injuries which shortly thereafter resulted in his death. This action was brought by the appellee, Sarah Dwyer, the widow of the decedent and administratrix of his estate, to recover of appellant damages for his death; the recovery being sought under the act of Congress known as the "Employers' Liability Act," approved April 22, 1908, as amended by the act of April 5, 1910, and the petition averring the facts necessary to bring the action within the purview thereof. There were three grounds of negligence alleged: First, negligence of appellant's servants, other than the decedent, in charge of the train, in the manner of operating same; second, negligence of the appellant in failing to equip the engines with sufficient headlights; third, negligence of the appellant and its servants in failing to take the proper precautions to prevent the fall of debris upon the railroad track at the place of the accident. We gather from the record, however, that the third ground of negligence mentioned was the only one relied upon for the recovery; and in support thereof evidence was introduced by appellee which strongly conduced to prove that the side of the cut from which the landslide came had, for some months prior to the accident, been in a more or less dangerous condition because of the presence of overhanging rocks and loose dirt, which gave notice to appellant of the danger to be apprehended from a landslide and of the necessity of taking such precautions as by the use of ordinary care could have been employed to prevent the same, and which, if employed, would have prevented the accident and consequent death of the decedent. On the other hand, in support of the denials of negligence contained in its answer, appellant introduced considerable evidence to the effect that the side of the cut gave no indication of danger or of the probability of a landslide; and further that the accident could not have been anticipated or prevented by it. The trial resulted in a verdict and judgment in appellee's favor for $14,000 damages. Appellant was refused a new trial; hence this appeal.

It is not contended by appellant's counsel that the verdict was not authorized by the evidence, but it is insisted by them that the judgment should be reversed because of error committed by the trial court in instructing the jury as to the measure of damages. The instruction on that subject is as follows: "The jury are instructed that, if they should find for the plaintiff, then they will from the evidence find for her such a sum of money as they may find and believe from the evidence will fairly and reasonably compensate the estate of the decedent, Richard Dwyer, for the destruction of his power to earn money, caused by his death, not exceeding however, the sum of $40,000, the amount claimed in the petition." Counsel concede that the instruction correctly states the measure of damages applicable to actions for death brought under section 6, Ky. Statutes, but contend that it is not applicable to actions brought under the federal statute, arguing that the damages recoverable under the latter statute are not such as will compensate the estate of the deceased employé for the destruction of his power to earn money, but such as will compensate his surviving relatives for the actual pecuniary loss resulting by reason of his death to the particular person or persons for whose benefit the statutory right of action is given. We are constrained to sustain this contention; indeed, in effect, have heretofore done so in the case of I. C. R. R. Co. v. Doherty's Adm'r, 153 Ky. 363, 155 S.W. 1119, in which a recovery was refused the administrator of an employé of the railroad company alleged to have been killed, while engaged in interstate commerce, by the negligence of its servants in operating one of its trains, because of the failure of the petition to allege, and of the evidence to show, that the deceased employé left surviving him a beneficiary or beneficiaries in whose behalf the recovery could be had. In the opinion we said: "It is clear that the act does not, like the Kentucky statute applicable to similar cases, allow a recovery merely to compensate the estate of the decedent for his death and the consequent destruction of his power to earn money, but provides that only those naturally or actually dependent upon the decedent shall take the benefit of the recovery. It therefore expressly limits the right of recovery to cases in which only the person or persons sustaining pecuniary loss by the decedent's death are entitled to be compensated, viz., the beneficiaries named, in the order named. This being so, it necessarily follows that in an action under the act of Congress, if there is no one for whom a recovery can be had, there can be no recovery. Proof must therefore...