L. & N.R. Co. v. Lewis

• Citation: 211 Ky. 830
• Parties: Louisville & Nashville Railroad Company v. Lewis.
• Decision Date: 20 October 1925
• Court: United States State Supreme Court (Kentucky)

211 Ky. 830

Louisville & Nashville Railroad Company v. Lewis.

Court of Appeals of Kentucky.

Decided October 20, 1925.

1. Master and Servant — Petition Held to Charge Railroad's Knowledge of Unsafe Place. — A petition charging defendant railroad company with negligently operating one of its cars on which plaintiff was switchman so close to top of shed alongside right of way, and to have so negligently constructed and maintained its tracks in proximity to shed that while engaged in performance of his duty plaintiff was knocked from car and injured, held sufficiently to charge defendant's knowledge of unsafe condition of place.

2. Master and Servant — Injured Employe Must Allege Absence of Knowledge of Unsafe Place. — Employe, injured while working in unsafe place, or with defective appliances, must, as condition to recovery from master, allege absence of knowledge that place was unsafe, or appliances defective.

3. Master and Servant — Master's Failure to Furnish Safe Place is Particular Cause of Action, which Must be Pleaded to Authorize Evidence and Instruction on Question. — Cause of action arising out of master's failure to furnish servant safe place to work is a particular cause of action, and must be pleaded in order to authorize introduction of evidence of, or submission of instruction on, unsafe place, and neither evidence of failure to furnish a safe place nor an instruction on that question is authorized under a general plea of negligence.

4. Master and Servant — Petition Held Defective in Failing to Allege Plaintiff's Absence of Knowledge of Unsafe Condition. — Petition seeking recovery for injuries in unsafe place of work held defective in failing to allege plaintiff's absence of knowledge of unsafe condition or inability by exercise of reasonable care to have known it.

5. Pleading — Evidence and Judgment Held to Cure Defect in Petition for Injuries in Unsafe Place of Work. — In action by employe against railroad company for injuries sustained in unsafe place of work, evidence and judgment for plaintiff held to have cured petition, defective in failing to allege absence of knowledge of plaintiff that place of work was unsafe, or that he could not have known of the unsafe condition by the exercise of reasonable care.

6. Master and Servant — Whether Switchman was Knocked from Freight Car by Roof of Shed Held for Jury. — Whether switchman was knocked from freight car by roof of shed in close proximity to track, or whether his fall was caused in some other way, held for jury.

7. Master and Servant — Master Entitled to Peremptory Instruction, Regardless of Plea of Assumed Risk. — When injury has resulted to an employe from no negligence of defendant master, the injury must be held to be either the result of the ordinary risks of the employment, which the servant assumed on accepting it, or of his own negligence, and in either of such cases the master is entitled to a peremptory instruction, regardless of whether he interposed plea of assumed risk.

8. Master and Servant — Trainmen May Assume Working Place is Safe. — Trainmen may assume, while discharging their duties on moving trains in the usual and customary manner, that the place they are working at or about is safe, and they are not required to be on the lookout for obstructions along the right of way that may injure them.

9. Railroads — Switchman Held Not to have Assumed Risk of Injury by Shed Near Track. — Switchman held not to have assumed risk of injury arising from being knocked off freight car by roof of shed in close proximity to track.

10. Damages — Verdict for Permanent Injuries Must be Supported by Positive and Satisfactory Evidence. — Verdict for personal injuries, which is so large that it is sustainable only if the injuries are permanent, must be supported by positive and satisfactory evidence of permanency.

11. Damages — $25,000.00 for Switchman's Injuries Held Excessive. — In action by switchman against railroad company for injuries to back, received in fall from car, resulting in various and severe pains, but concerning the permanency of which there was much uncertainty, verdict of $25,000.00 held excessive, as reflecting passion or prejudice of jury, not based on the evidence.

Appeal from Lee Circuit Court.

HUNT, NORTHCUTT & BUSH, ROSE & STAMPER and WOODWARD, WARFIELD & DAWSON for appellant.

J. MOTT McDANIEL, FRED P. CALDWELL, LESLIE W. MORRIS, D.L. HAZELRIGG and POLK SOUTH, JR., for appellee.

OPINION OF THE COURT BY COMMISSIONER SANDIDGE.

Reversing.

Appellee recovered judgment for $25,000.00 in the Lee circuit court in an action against appellant for injuries alleged to have been received by him as a result of its negligence while employed by it as switchman in its railroad yards at Hazard, Kentucky. The appeal has been prosecuted to reverse that judgment, and numerous grounds are urged upon this court as reasons for so doing. Eight different briefs have been filed setting forth the contentions of the respective parties. Some of them are of large volume, others not so large, but in view of the great length to which this case has been briefed by either side, the court feels that in order to limit this opinion to a reasonable length, it will not be necessary to follow the various arguments made to the length they have gone. The opinion will be confined to what the court deems the salient points in the case.

It is insisted for appellant that the petition does not state a cause of action and that a peremptory instruction should have been given for appellant for that reason. Appellee's right to recover in this case was predicated upon appellant's negligent failure to furnish him a reasonably safe place to work. Appellant insists that the petition is defective in that it does not allege that appellant knew of the unsafety or by the exercise of ordinary care should have known of it. We find the petition to charge appellant with so negligently operating one of its cars upon which appellee was engaged in service as a switchman so close to the top of a shed standing alongside the right of way and to have so negligently constructed and maintained its tracks in proximity to the shed that while engaged in its service in the performance of his duty he was knocked from the car and injured. The court is of the opinion that those allegations of the petition sufficiently charge appellant's knowledge of the unsafe condition of the place. Appellant could not construct its tracks close enough to a building standing alongside its right of way to be unsafe for trainmen engaged in its service without knowledge of that fact.

It is further insisted for appellant that the petition was defective in that it did not plead that appellee did not know and could not by the exercise of reasonable care have known of the unsafe condition of the place furnished him to work. Under the general rule on the subject appellant's position as to this question would seem to be well taken. The general rule, supported by numerous opinions of this court, is that when a person sues the master to recover damages for injuries received by being put to labor in an unsafe place or with defective appliances, he must, to state a good cause of action, allege that he did not know that the place was unsafe or that the appliances were defective. L. & N. Railroad Company v. Irby, 141 Ky. 145, 132 S.W. 393, and cases there cited. See also Raikes v. Payne, Director General, 198 Ky. 820, and Idol v. L. & N.R. Company, 203 Ky. 81. Under that rule, as was particularly pointed out in the Irby case, supra, in case the petition contains merely a general charge of negligence, evidence of unsafe place or defective appliances may not be introduced for the servant except to rebut evidence of contributory negligence, and it is error to instruct either as to unsafe place or defective appliances. The reason is that under a general charge of negligence the cause of action is predicated upon negligence committed by positive act or omission to act by the master or any or all of his agents. In other words, a cause of action arising out of the master's failure to furnish the servant a safe place to work is a particular cause of action and must be pleaded in order to authorize the introduction of evidence of or the submission of an instruction on unsafe place, and neither evidence of failure to furnish a safe place nor an instruction on that question is authorized under a general plea of negligence.

It appears that the petition herein is not predicated upon a general charge of negligence but is appellee's efforts to state a cause of action against appellant for negligently failing to furnish him a safe place to work. Tested by demurrer the petition is defective in that it does not allege that the appellee did not know of the unsafe condition or by the exercise of reasonable care could have known of it. No demurrer was interposed, however, and its allegations were denied by answer. The case then went to trial under the petition, defective in the respects pointed out, but which unmistakably was an attempt to state a cause of action against appellant for failure to furnish appellee a safe place to work. The testimony for appellant and appellee was developed fully as to all the elements necessarily embraced within a cause of action predicated upon the master's failure to furnish the servant a safe place to work. The evidence for appellee, as will more fully appear hereinafter, was sufficient to have entitled him to go to the jury under a properly pleaded cause of action. The instruction submitted the essential element omitted from the petition. The court then is clearly of the opinion that this presents a state of case in which the proof and judgment cured the defect in the petition.

In McKinney Deposit Bank v. Cyrus W. Scott Manufacturing Company, 207 Ky. 340, the latest utterance of this court on the question, the following from Stevens on Pleading, page 148, was approved as the rule:

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