Appeal
from Circuit Court, Morgan County; D. W. Speake, Judge.
Action
by Roberta Young, as administratrix of Joe Lawrence
deceased, against the Louisville & Nashville Railroad Company
for the death of deceased. From a judgment for plaintiff
defendant appeals. Reversed and remanded.
For the
statement of the facts, and for former report of this case
see citations set forth in the opinion.
The
question to the witness Bonham was as follows: "Suppose
that the reservoir pressure of the air on a 40-ton switch
engine, six-wheel connected engine, is 90 pounds to the
square inch, and the train line pressure is 70 pounds to the
square inch, and that the engine is proceeding south on a
level or nearly level track, at the rate of 6 or 7 miles per
hour, going backward, pushing backward a tender upon which
there are 8 truck wheels, against each of which there is an
air brake appliance, how long would it take this air under
these conditions to stop that engine, if everything was in
good working order?"
The
following charges were given at the instance of the
plaintiff:
"(3)
If McDermott, the engineer, saw Lawrence, when the latter
was in 3 or 4 feet of the moving tender, make a quick
movement to get on the track in front of said tender, and
if the engineer knew that the contact of the tender with
Lawrence could not then have been prevented, it was the
duty of the engineer to make every reasonable effort to
stop the engine as quickly as practicable, whether he knew
that Lawrence was under the engine, or on the footboard, or
not, if in fact Lawrence was in either position; and if the
engineer failed in his duty in this respect, and such
failure was the proximate cause of the death of Lawrence,
then your verdict must be for the plaintiff,
notwithstanding Lawrence should not have gone on the tracks
without looking." "(8) The mere passage of the
footboard over Lawrence before the engine could have been
stopped would be no defense, provided the death of Lawrence
was caused by his head being caught under the brake beam;
and if Lawrence became unable to save himself, and if
McDermott knew that fact, if it was a fact, and after such
knowledge McDermott negligently failed to stop the engine
before Lawrence's head was thus caught, and if he could
have stopped in time to have saved Lawrence, the verdict
must be for the plaintiff.
"(9)
If Lawrence got in a position of great peril, and if he
became unable to save himself, and if McDermott knew these
facts, if they were facts, and if, after such knowledge, he
(McDermott) acted negligently as charged, and if by reason
of such negligence the head of Lawrence became caught
between the rail and the brake shoe, and if thereby the
fatal injuries were inflicted after he was rolled and
dragged, if he was rolled and dragged, the verdict must be
for the plaintiff, provided Lawrence was not negligent
after becoming so imperiled."
The
following charges were refused to the defendant:
"(5)
I charge you that the undisputed evidence in this case
shows that said injuries which produced the death of
Lawrence could not have resulted from said Lawrence being
pushed or dragged, without compression or contact with a
foreign substance. Therefore, if you believe such evidence,
in connection with other evidence, your verdict should be
for the defendant upon the counts in the complaint alleging
the dragging or pushing of said Lawrence as a cause of the
injuries which produced his death.
"(6)
The plaintiff cannot recover in this case, unless
Lawrence's danger under the tender was known to
McDermott, and he then failed to adopt means known to him
best adapted to stop the engine and avert injuries to
Lawrence.
"(7)
I charge you, gentlemen of the jury, that on the undisputed
evidence in this case the plaintiff's intestate, Will
Lawrence, was guilty of contributory negligence, and your
verdict should be for the defendant, unless you believe
from the evidence that the defendant's engineer,
McDermott, knew that the said Lawrence was under the tender
of the engine, and not mortally injured, and after such
knowledge failed by the exercise of all proper means
reasonably capable of adoption at the time to avert said
injury."
"(11)
I charge you that the undisputed evidence in this case
shows that said injury, which produced the death of
Lawrence, could not have resulted from said Lawrence being
pushed or dragged. Therefore, if you believe said evidence,
in connection with the other evidence, your verdict must be
for the defendant upon the counts in the complaint alleging
the dragging or pushing of said Lawrence as the cause of
injuries which produced his death."
"(15)
I charge you, gentlemen of the jury, that if you believe
the evidence you will find that Ben McDermott, the
engineer, did not know the whereabouts or peril of Joe
Lawrence after he stepped in front of the moving engine.
"(16)
If you believe from the evidence that the engine weighed
80,000 pounds, and that such weight, going at the speed of
6 miles an hour, came in contact with Lawrence's head,
and thereby produced the fracture which caused his death,
the verdict should be for the defendant.
"(17)
Under the pleadings in this case, plaintiff has alleged
that Lawrence was pushed and dragged, and thereby met his
death, and that his position was known to McDermott, and
the burden of proving this to your reasonable satisfaction
rests upon the plaintiff. Plaintiff introduced McDermott as
the only witness to establish this averment, and there is
no conflict in the evidence that McDermott did not know the
position of Lawrence. Therefore, if you believe this
evidence, in connection with all the other evidence in the
case, you will find for the defendant on such issue."
"(20)
If the jury are in doubt from the evidence as to whether
said fatal injury occurred by the footboard running over
Lawrence, or being struck by the engine, or by the fall of
Lawrence, or by being dragged or rolled after the engine
could have been stopped, then the defendant was entitled to
such doubt. If such doubt exists from the evidence, your
verdict should be for the defendant."
"(23)
It is not the law that the failure of the engineer to stop
the engine, and the injury to intestate being thereby
produced, that by reason thereof the engineer was guilty of
negligence. The engineer performed all his duties required
of him when he closed the throttle, reversed the engine,
and applied the air brake, and that he sounded the alarm
while reversing the lever and lost no time in so doing from
the application of appliances, and if you find from the
evidence he so acted, and such action was the action of a
careful and prudent engineer, then the defendant is not
liable, although you may be reasonably satisfied from the
evidence that the intestate received the fatal injuries by
being pushed, dragged, or rolled, after the performance of
the preventive measures by the engineer.
"(24)
Whether the engine was stopped as quick as it could have
been, or not, is immaterial. The question for you to
determine is: Was there negligence on the part of the
engineer in applying the stopping instrumentality, and was
this negligence, if it existed, the proximate cause of the
injury? If you are reasonably satisfied from the evidence
that there was not negligence in the application of
stopping appliances, your verdict should be for the
defendant."
"(29)
If you believe from the evidence that Lawrence stepped upon
the footboard of a moving engine, and that he immediately
slipped and fell under the footboard, and that thereby he
received the fracture of the skull producing his death,
then the defendant is not liable in this action, and your
verdict should therefore be for the defendant."
"(42)
If you believe from the evidence that the footboard of the
engine was from four to six inches above the rail, or from
four to eight inches above the rail, and that said
footboard passed over Lawrence, you can look to that, in
connection with the other evidence in the case, to
determine whether or not Lawrence received said fractures
when said footboard passed over him. If you believe from
the evidence he did, your verdict should be for the
defendant."
"(46)
If you believe the evidence, you will find that the
fracture of the skull which produced the death of Lawrence
was not caused by his being dragged or pushed."
"(62)
I charge you, gentlemen of the jury, that the burden of
proof is upon the plaintiff to prove to your legal
satisfaction that plaintiff's intestate was rolled and
dragged after the engine should have been stopped, and that
he thereby received the injuries, and unless you so believe
your verdict should be for the defendant."
"(75)
An engineer in charge of an engine moving towards one in
peril does not perform his duty if he gives no warning
signal to awaken or quicken the party in peril to the
natural impulse, as well as the legal duty, to conserve his
own safety, unless it was reasonably apparent from the
situation to the engineer, as one ordinarily prudent and
skillful in that situation, that to warn would be
unavailing.
"(76)
If you believe the evidence, you will find that McDermott
did not know whether Lawrence was in danger or in a place
of safety upon the footboard; and under the circumstances I
charge you that it was his duty to give such warning, if
under all these circumstances it was reasonably apparent to
him that the giving of it would quicken the knowledge of
peril to Lawrence."
"(91)
If you believe from the evidence that both McDermott and
Lawrence were guilty of negligence at the time the fatal
injury occurred to Lawrence, your verdict should be for the
defendant."