Greer v. Louisville & N.R. Co.

• Decision Date: 11 March 1893
• Citation: 94 Ky. 169,21 S.W. 649
• Parties: GREER v. LOUISVILLE & N. R. CO. LOUISVILLE & N. R. CO. v. GREER.
• Court: Kentucky Court of Appeals

21 S.W. 649

94 Ky. 169

GREER v. LOUISVILLE & N. R. CO.

LOUISVILLE & N. R. CO. v. GREER.

Court of Appeals of Kentucky.

March 11, 1893

Appeals from circuit court, Marion county.

To be officially reported.

Action by James Greer against the Louisville & Nashville Railroad Company to recover damages for injuries received while in defendant's employ as a brakeman. A verdict for $2,500 was rendered in favor of plaintiff, and both parties appeal. Reversed.

HAZELRIGG J.

James Greer, as plaintiff in the lower court, brought this action against the Louisville & Nashville Railroad Company for negligently driving its car or cars upon and over his leg crushing it in such manner as to cause its necessary amputation, and alleging that, by reason of the defendant's negligence, plaintiff lost his left leg, and endured great mental and physical suffering, etc., to his damage in the sum of $25,000. He recovered the sum of $2,500. Thereupon the defendant prosecuted an appeal to the superior court, and the plaintiff prosecuted one to this court. On plaintiff's motion the case in the superior court was transferred here, and the two appeals, being one and the same case, are heard together.

At the Lebanon switch yard, on the line of defendant's road, it became necessary to place two gondola cars on one of the side tracks, and some box cars on another. There was some haste required, as the conductor's purpose was to keep from being held there by the next train going south. So Greer was directed by the conductor, when asked if he wanted the cars placed back against the "dead" cars, "to just drop them in clean of the main track," as he was in a hurry. "Dropping them back" meant "to cut them loose whilst moving so that the loose cars would roll back to their place by the dead ones." The conductor then signaled the engineer to back in, and, it appears, left going south several car lengths, towards the depot, and, when the accident happened, was engaged in chalking some cars, to indicate their destination. The plaintiff went in to uncouple or cut loose the two cars, in obedience to the instructions as he understood them, not knowing but that the conductor was near at hand to protect him. He found the pin crooked, so that he could not pull it out, and walked with one foot on the outside and the other on the inside of the track for some 15 or 20 feet, when, as affording him more strength for extricating the pin, he brought both feet within the rails of the track; and, after taking a step or two, his foot caught on the end of the guard rail, or, as testified to by him, a splinter on the guard rail at the frog of the switch stuck into the toe of his shoe. With his right hand he had hold of the car in his front, and pulled his foot loose, but, losing his balance, was dragged some distance, when he fell to the ground, on his hands and feet, and ran in that way some distance. From the guard-rail splinter to where he finally threw his body from under the car, when his foot was caught, was some 25 yards. When he went in to uncouple the cars, he testifies, they were moving at the rate of about two miles an hour, but their speed was increased rapidly, and they were going when plaintiff was injured about five miles per hour. The train struck the dead cars violently, knocking them back some 70 feet. A fellow-brakeman was on top of one of the box cars, and saw Greer when he first started to fall, and testifies that he got down off the car, and ran out on the opposite side from him, in order to signal Martin, the fireman, who had been left in charge of the engine by the regular engineer. The fireman was waiting for signals, and appears to have known nothing of the trouble until it was about over. In this connection it may be observed that the company introduced an order or certificate of its master mechanic, of date December 11, 1890, to the effect that Martin was declared competent, and was authorized, to handle an engine, as per rule 207, which made it "the duty of an engineer to handle his engine at all times, but a fireman may do so at a station in the immediate presence of the engine-man, provided the master mechanic has declared him competent." This declaration of competency was some six weeks after Martin had been left in charge of this engine, in violation, it thus appears, of rule 207.

Upon this state of case the defendant company moved the court for a peremptory instruction in their behalf, which we think was properly overruled. That there was some negligence, we have no doubt, and that, too, on the part of employes superior to the plaintiff in point of employment and control of the train. It is true that there must have been gross negligence in this case before the plaintiff can recover; but, as was said in Railroad Co. v. Mitchell, 87 Ky. 337, 8 S.W. 706, "certainly the absence of slight care in the management of so dangerous an agency as a railroad train is gross negligence."

On the trial much prominence was given to the testimony of various witnesses as to the condition of the guard rail, the crooked pin, and the injured condition of plaintiff's arm. This testimony was objected to by the defendant, and we think the objection should have been sustained. These circumstances, if regarded as a mere matter of detail, or as incidents of the transaction, might not have been objectionable, as it is hardly possible to detail the occurrence without stating all the conditions and surroundings as they existed at the time but witnesses were introduced solely in these matters, and for the express purpose of making them the basis of a claim for damages. This was not proper, under the pleadings. The unsafe or defective condition of the track, or of any...