Louisville & N. R. Co. v. Robinson

• Decision Date: 02 February 1868
• Citation: 67 Ky. 507
• Parties: Louisville and Nashville Railroad Company v. Robinson.
• Court: Kentucky Court of Appeals

67 Ky. 507

Louisville and Nashville Railroad Company v. Robinson.

Court of Appeals of Kentucky.

February 2, 1868

1. The implied undertaking between a Railroad Company and its employees in the same class of service, does not exonerate the company from liability for damages, resulting to one of such co-agents, from extraordinary, or gross negligence of another of such agents, in the same line of service. The principles of the case of Louisville and Nashville Railroad Company vs. Collins (2 Duvall, 114) are adhered to without qualification.

2. Engineers and brakesmen are held to be in the same class or line of service; and the fact that the engineer served on a passenger and the brakesman on a freight train, does not affect the reason and policy of implying, as between themselves, such associations, knowledge, and trust, as to have induced an undertaking mutually to risk all the contingencies which the ordinary skill and care of each other in his line of service could not avert.

3. Gross neglect is either an intentional, or such a reckless disregard of security and right, as to imply bad faith, and therefore, squints at fraud, and is tantamount to the magna culpa of the civil law, which, in some respects, is quasi criminal.

4. If the employe, or agent complaining of hurt, contributed to it by his own negligence, he cannot recover damages from the Railroad Company, unless its co-operating agent, charged with gross neglect, could have avoided the impending damage, by the observance of ordinary diligence, notwithstanding the neglect of the complaining party.

APPEAL FROM JEFFERSON COURT OF COMMON PLEAS.

I. & J CALDWELL, For Appellant,

CITED--

2 Duvall, 118; Louisville and Nashville R. R. Co. vs. Collins.

Law Register, March No., 1866, Redfield's notes.

J. G. WILSON, For Appellee,

CITED--

4 Met., 49; 1 McMullen, 385.

2 Duvall, 118; Louisville and Nashville R. R. Co. vs. Collins.

3 Mus. & Welsb., 1; Priestly vs. Fowler.

1 Bush, 402; Louisville and Nashville R. R. Co. vs. Young.

OPINION

ROBERTSON JUDGE.

This appeal is prosecuted for reversing a judgment in the appellee's favor against the appellant for five thousand dollars, on a verdict for that amount in an action for the loss of a leg by being run over by a locomotive engine and tender, in the yard of the depot at Bowling Green, Kentucky. There were three tracks in the yard, with switches for regulating the movements of trains and engines coming in and going out. The engine and tender which ran on the appellee belonged to the passenger train, and the appellee was brakesman on a freight train of the company. Being in the yard, the appellee started on the central track to go out to the caboose of his freight train, and, while walking on that track, the engine...