L. & N. R. Co. v. Wright

• Decision Date: 21 March 1919
• Parties: Louisville & Nashville Railroad Company v. Wright Louisville & Nashville Railroad Company v. Barr, Administrator Winford Wright.
• Court: Kentucky Court of Appeals

183 Ky. 634

Louisville & Nashville Railroad Company v. Wright

Louisville & Nashville Railroad Company v. Barr, Administrator Winford Wright.

Court of Appeals of Kentucky.

Decided March 21, 1919.

Appeals from Franklin Circuit Court (Two Cases).

GUY H. BRIGGS and BENJAMIN D. WARFIELD for appellant.

JAMES H. POLSGROVE, LESLIE W. MORRIS, and SCOTT & HAMILTON for appellees.

OPINION OF THE COURT BY JUDGE CLARKE — Affirming one and reversing the other.

On July 6 and 7, 1916, Winford Wright, employed as a section hand for the L. & N. R. R. Co., at the direction of the section boss, helped unload, at Jett Station, ties that had been treated with creosote oil.

In the following March he filed the first of these actions to recover for injuries alleged to have been sustained as a result of defendant's negligence in failing to warn him of the danger in handling such ties, which work he alleged was dangerous to his health and person, of which defendant knew or ought to have known, but of which he did not know.

Defendant's answer traversed the allegations of the petition, and in separate paragraphs pleaded assumed risk, contributory negligence and that if plaintiff was injured, which was denied, it "was not a probable consequence that would usually or ordinarily result from handling ties that had been treated with creosote oil," but "was due from some idiosyncrasy or peculiar susceptibility possessed by him and which does not exist in the ordinary run of men," and which was not known and could not have been known by the exercise of ordinary care, by defendant. A reply traversed the allegations of the answer.

A trial on September 18, 1917, resulted in a judgment for $5,000.00 in favor of the plaintiff, from which judgment the first appeal is prosecuted.

On December 20, 1917, the plaintiff died and the defendant brought suit against his administrator for a new trial, in which, after setting out the facts with reference to the former trial, it is alleged:

"Plaintiff says that one of the issues, and the principal issue, on the trial of the said action of Winford Wright against Louisville & Nashville Railroad Company at said term of this court, was the nature of plaintiff's disease and the question of whether or not that disease was the result of the handling of the creosote ties.

"The plaintiff states that it was admitted by both plaintiff and defendant in that action that tuberculosis was not and could not be the result of the handling of the creosote ties and the defendant contended that the plaintiff then had, and had, prior to the institution of this action, tuberculosis of the lungs, and the plaintiff denied this and said he was suffering from creosote poisoning, which affected his liver, muscles, nerves and eyes.

"Plaintiff states that on the issues thus formed a great deal of medical testimony was taken. All of the plaintiff's medical witnesses testified positively that he had no form of tuberculosis, and could not have contracted same as the result of handling creosoted ties. The defendant's medical witnesses all testified that he had tuberculosis but that he could not have contracted it from the handling of creosoted ties.

"Plaintiff states that thereafter the term of court in which this plaintiff's motion and ground for new trial was overruled on December 20, 1917, the said Winford Wright died, and died as this plaintiff can and will prove, of tuberculosis of the lungs.

"Plaintiff states that he is able to prove this fact by Dr. Warren Monfort, who, on the 22nd day of December, 1917, certified that fact to the Registrar of Vital Statistics of the State Board of Health of the Commonwealth of Kentucky, a copy of which certificate is filed herewith.

"Plaintiff says that in the natural course of events it did not know these facts and could not have known these facts until after the term of this court had come to an end and the court had finally adjourned for said term, and that it is now willing, able and ready to prove the facts above set forth.

"Wherefore, the plaintiff prays that this court set aside the judgment entered heretofore in this case and grant this plaintiff a new trial in that case."

A certified copy of the report of the attending physician, Dr. Warren Monfort, to the Registrar of Vital Statistics is filed as an exhibit, in which it is stated: "The cause of death was as follows: Tuberculosis of lungs; Duration____ years____ mos.____ ds. Don't know. Contributory: Don't know."

A demurrer was sustained to this petition for a new trial and the petition dismissed, from which judgment the railroad company is also appealing, the two appeals, by agreement, being heard together, and we shall first dispose of the latter.

It is insisted by counsel for the company, that since the demurrer admits all facts pleaded, death from tuberculosis is established upon newly discovered evidence and that fact is so conclusive of the issue tried and decided adversely to it as to furnish ground for a new trial; but is the fact that decedent died of tuberculosis three months after the trial, if admitted, conclusive or convincing proof that he had that disease at the time of the trial, as testified by medical witnesses for defendant, but denied by about the same number of physicians who testified for the plaintiff, who stated he was then suffering from systemic poisoning resultant from absorption of creosote? It is not alleged in the petition that this is true or could be proved and we would hardly risk the statement that such a fact is a matter of common knowledge, but further than this the petition states the newly discovered evidence to be the report of the attending physician, which surely can not be accepted for more than his opinion that decedent died of tuberculosis, especially since he states he does not know the duration or any contributory cause of the disease, and there is no allegation or statement indicating any conclusive test or post-mortem examination or by what means this opinion or conclusion was reached. Hence we think the fact admitted upon demurrer to the petition is that Wright died of tuberculosis three months after the trial, as could be shown by the evidence of Dr. Montfort, who knows nothing of the duration or contributing causes of the disease.

This new evidence certainly does not bring the case within the rule announced in Anschutz v. Louisville Ry. Co., 152 Ky. 741, chiefly relied upon by appellant, where a female, after recovering damages for negligence which was held upon conflicting proof to have rendered her barren, gave birth to a child, nor is the newly discovered evidence of the decisive character held to be necessary to warrant a new trial in the other cases cited. Mason, Evans & Keys v. Meloan, 165 Ky. 582; Smith v. Chapman, &c., 153 Ky. 70, and National Concrete Cons. Co. v. Duvall, &c., 153 Ky. 394. Hence the court did not err in sustaining the demurrer to the petition for a new trial, and the judgment in that case is affirmed.

2. For reversal of the original judgment, it is urged first and principally that under the allegations of the petition and the proof, damages for only temporary or external and not permanent or internal injuries should have been allowed. We do not deem it necessary to discuss separately the allegations of the petition which we consider sufficient to support the verdict, because the whole question is presented by a consideration of the evidence. The only negligence alleged or supported by proof is the failure of defendant to warn plaintiff of any danger incident to handling creosoted ties, of which fact the evidence is quite contradictory, as it is upon the questions of whether or not there was any such danger, and whether the defendant had knowledge of any such danger. So these questions of fact were properly submitted to the jury. The real controversy is about the extent of the danger and the consequences of the neglect to warn if the jury believed from the conflicting evidence there was danger of which the defendant knew and failed to warn plaintiff, and as the jury found for plaintiff we shall assume for the purposes of this discussion there was danger of injury, at least externally, to persons handling creosoted ties, and the defendant knew of the danger of external injuries and failed to warn plaintiff thereof. There is, however, no proof that defendant or its agents had actual knowledge that there was any danger of internal injuries from handling creosoted ties, and its evidence is uncontradicted that this is the first instance of internal injuries from such work, if such it is, that has come to the knowledge of its agents and several disinterested witnesses, although experienced for many years in handling ties and other timber treated with creosote oil produced from coal tar as a preservative, just as in this case. We shall therefore also assume, but do not decide, that defendant could not by the exercise of ordinary care have known there was danger of internal injuries from such work, although it was shown by the evidence that technical works upon materia medica record the possibility of systemic poisoning by absorption through the pores of the skin from contact with coal tar creosote, or from inhalation of the fumes therefrom, and counsel for plaintiff have cited two cases from courts of last resort, one from Illinois, decided in 1910, and the other from Texas, decided in 1915, in both of which such results were established to the satisfaction of the juries, from which it might well be argued defendant could have known and ought to have foreseen the possibility of internal as well as external injury. We shall further assume, for the moment, that plaintiff did not know of any danger from such work because omitted from the instruction defining his right of recovery, although a controverted necessary element of such right and about which the evidence was conflicting.

Thus stripped, our inquiry is reduced to whether or not the defendant,...