L. & N. R. R. Co. v. Allen's Admr.
| Decision Date | 20 March 1917 |
| Citation | 174 Ky. 736 |
| Parties | Louisville & Nashville Railroad Company v. Allen's Administrator. |
| Court | Kentucky Court of Appeals |
Appeal from Carroll Circuit Court.
GEORGE D. WINSLOW and BENJAMIN D. WARFIELD for appellant.
EDWARDS, OGDEN & PEAK for appellee.
This is an appeal from a judgment of the Carroll circuit court in favor of the appellee (plaintiff) against the appellant (defendant) for the sum of $16,000.00, which he recovered for the alleged negligent destruction of the life of P. G. Allen. The suit was prosecuted for the use and benefit of his widow, who was, at the time, twenty-three years of age, and of his infant daughter, whose age at the time was twenty months, they being dependent upon him, and it was brought under the Federal Employers' Liability Act, the decedent being a locomotive fireman on one of the defendant's engines which, at the time of the accident resulting in his death, was engaged in interstate commerce. The decedent's death was caused by the giving way of bridge or trestle No. 10, located in Carroll county and supporting the track of the defendant in its line of railroad between Cincinnati, Ohio, and Louisville, Kentucky, causing the engine upon which the decedent was at work as fireman, to fall a distance of something like forty feet, followed by several cars and which produced his instant death. The cause of action stated in the original petition is, that the bridge which fell was in a defective condition; that it had negligently been suffered and permitted by defendant "to become weak, out of repair and unsafe and dangerous, defective and insufficient for the operation of trains over the same, and that by reason of said weakened, unsafe, dangerous and defective and insufficient condition," it broke down and caused the engine to fall to the ground, resulting in the decedent's death. It is, of course, alleged that the defendant knew of the condition of the bridge or could have known it by the exercise of ordinary care, and that the decedent did not know it. By an amended petition, the additional causes of action are attempted to be relied upon, that the track at or near the approach to the bridge was in a defective condition through the negligence of the defendant; that the engine and cars composing the train were in a defective condition and unsafe, of which facts the defendant knew or could have known by the exercise of ordinary diligence; and it is furthermore alleged therein that the train, at the time, was negligently managed and operated, and that such facts, so stated in the amendment, were producing causes of the accident resulting in Allen's death.
The answer is a denial with a plea affirmatively showing the exercise of ordinary care on the part of the defendant in all the matters alleged as constituting its negligence, and avers that the falling of the bridge was due to an unavoidable accident and was one of the risks which the decedent assumed upon entering the employment of defendant. A reply completed the issue and the trial resulted as above indicated.
Numerous grounds for a new trial are incorporated in the motion made therefor, but there are urged before us, and we deem necessary to consider only the following: (1) Because the court erred in refusing to direct the jury to return a verdict for the defendant, made both at the close of the plaintiff's testimony, and at the close of all of the testimony; (2) error of the court in giving and refusing instructions to the jury; (3) the verdict is excessive; and, (4) improper argument of counsel in his closing address to the jury.
Defendant insists upon two grounds authorizing the sustaining of its motion for a peremptory instruction in its favor, which are: (a) The plaintiff's testimony failed to show facts sufficient to authorize the submission of the question of the defendant's negligence to the jury; and, (b) that if it should be mistaken in this that its testimony completely destroyed any presumption which might be indulged in plaintiff's favor. It, therefore, becomes necessary to make a brief review of the testimony introduced by plaintiff in support of the action.
The accident occurred at about 3 a. m., on September 25th, 1914, while the train, upon which decedent was employed, was going south from Cincinnati to Louisville. There were three persons upon the engine at the time, they being the decedent, who was killed, the engineer, who was killed, and the head brakeman, who survived. The latter testified, in substance, that he was riding on the left or east side of the engine and at some point between 150 and 180 feet south of the north abutment of the bridge, the first thing he knew was that he heard some noise and the engine immediately went down; that there was nothing unusual happened immediately before it fell. That the train was traveling between twelve and fifteen miles per hour and going up grade and around a six degree curve, which is described by the bridge. He states that if any of the cars had become derailed, he could have discovered it by the effect it would have had upon the speed of the train. The bridge is shown to have been constructed in 1890, with iron or steel pillars or posts, and alternate expansions of thirty and sixty feet, with steel girders. Some time before the accident, defendant commenced near to, and west of the north end of the bridge construction work for the erection of a new one. This work, so far as completed, was the making of a fill west of the old bridge so that the span across the creek, including the trestle work, would be made much shorter. The dump had been constructed some considerable distance from the north abutment of the bridge and witnesses for plaintiff testified that the material with which it was constructed had in it many large rocks which would roll down under the old bridge as they would be emptied from a dump car on a false track constructed for that purpose. Plaintiff's testimony shows that these rocks, or at least some of them, weighed from 500 to 1,000 pounds, and would roll down the embankments of the newly constructed dump with great force. The evidence shows that the filling in under the old bridge from the rolling of dirt and rocks off of the dump was much greater at the north end of the bridge for the space of sixty feet, which remained standing after the accident, than it was further south from that point. However, the testimony shows that rocks and large lumps of dirt had rolled under the old bridge down as far as it gave way. In fact, this is not controverted by defendant's testimony. No witness, however, states that any rock or large lump of dirt struck any of the supports of the bridge or concrete in which they were fixed, or any of the rods bracing the bridge.
And it is argued by defendant that inasmuch as no witness saw any rock strike any part of the bridge that the evidence introduced by plaintiff upon this subject can have no probative force. We do not, however, take this view of the matter, for although the surface of the supports to the bridge and rods bracing it, is exceedingly small compared with the space between the bents, still it is perfectly possible that some of the rocks may have come in contact with some parts of the bridge or braces thereto. A witness, who had been an employee of the defendant, and had either constructed or assisted to construct the false work necessary to build the dump, testified, in addition to the rolling of rocks under the old bridge, that he, while at work a short while before the accident, observed the running of trains over the bridge and observed a noticeable shake or jerk of the bridge at a point about four rails south of its northern abutment, which covered that portion of it that fell. Another witness, in testifying upon this point, said: He states that he observed these conditions about three or four days before the accident. Still another witness, testifying upon the same point, said: " He also states that he made such observations some two or three days before the accident. This, in substance, was all the proof looking to the establishment of negligence on the part of the defendant, and it is seriously insisted that it is insufficient to authorize a submission of the question to the jury. It may be conceded at the outset that the res ipsa loquitur doctrine, strictly speaking, and confined strictly within the reasons calling for its application, does not prevail in controversies between master and servant. This is perhaps more particularly so as to its application by the federal courts. That doctrine is that negligence may be presumed or inferred from the mere happening of the accident, and that although the burden is upon the plaintiff to establish negligence, still, in certain cases where it is applicable, proof of the accident is sufficient for that purpose and shifts the burden upon the defendant to explain away the prima facie case made by the presumption. The reason why the rule embodied in the maxim is most generally held not to apply as between master and servant is that the mere happening of the accident does not indicate whether it resulted from any of the causes for which the master would be liable or from some cause that the servant assumed or for which he was responsible. The modern tendency, however, is that even as between master and...
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