Louisville & N.R. Co. v. Tow

• Decision Date: 24 May 1901
• Citation: 63 S.W. 27
• Parties: LOUISVILLE & N. R. CO. v. TOW. [1]
• Court: Kentucky Court of Appeals

63 S.W. 27

LOUISVILLE & N. R. CO. v. TOW. ^[1]

Court of Appeals of Kentucky.

May 24, 1901

Appeal from circuit court, Muhlenberg county.

"Not to be officially reported."

Action by Henry Tow against the Louisville & Nashville Railroad Company and the Globe Contracting Company to recover damages for personal injuries. Judgment for plaintiff against the Louisville & Nashville Railroad Company, and that defendant appeals. Affirmed.

Browder & Browder, Edward W. Hines, H. W. Bruce, Walker D. Hines, and B. D. Warfield, for appellant.

B. F Proctor, Proctor & Herdman, W. L. Dulaney, Jno. W. Ray, and C. P. Chenault, for appellee.

GUFFY J.

This action was instituted in the Muhlenberg circuit court by the plaintiff (now appellee) against the appellant and the Globe Contracting Company. It was substantially alleged in the petition that the Globe Steam-Shoveling Company was a corporation with power to sue and be sued under that name and that on the 2d day of February, 1897, the appellant railroad company and the shoveling company did, in the county of Muhlenberg, by their gross negligence, greatly and permanently injury the plaintiff, and did thereby cause him great mental and physical suffering, and permanently injured his ability to earn money,--all to his damage in the sum of $15,000; that on said day defendants were engaged in blasting stone and removing same from a tunnel on the line of said railroad, and that said shoveling company was thus acting as the agent, servant, and employé of said railroad company, and under the direction and control of said company, and did while acting as such agent and servant, by gross negligence blast with dynamite a great mass of stone and dirt, and by such gross negligence caused the same to fall upon the plaintiff, and injure him as aforesaid, all of which was done by defendants and received by plaintiff without fault on his part, and was the direct and proximate result of the gross negligence of the defendant railroad company and its agent and servant, the shoveling company. The first paragraph of the answer of appellant may be treated as a traverse of the averments of the petition showing injury to plaintiff or negligence upon the part of the defendant or its agents or servants. In the second paragraph it is substantially averred that on said day of the injury the plaintiff was walking along on defendant's railroad track, and through a tunnel on said railroad, in said county, and trespassing upon defendant's track and premises, where he had no right to be; and that while so trespassing was injured by the effects of blasting which was then and there being done, and not by defendant's agents or servants or employés, but being done by its co-defendant, the Globe Contracting Company under and by virtue of and pursuant to a written contract made and entered into by and between it and the Globe Contracting Company of date November 26, 1896. The alleged contract is copied in the answer, but is of such considerable length that we deem it unnecessary to copy it in this opinion. The purported signature of the contracting company reads as follows: "Globe Contracting Company, by --, President." It is also signed, "Louisville & Nashville Railroad Company, by R. Monfort, Chief Engineer." It is further alleged that the blasting by which plaintiff was injured was done by said independent contractor, the Globe Contracting Company, and that over the manner of doing said work appellant did not have or exercise any control other than that which is specified in said contract; that those engaged in doing said work and making said blasts from which plaintiff's injury resulted were the servants and agents of the Globe Contracting Company, and not the servants, agents, or employés of appellant; that the servants of said contractor, neither at or before the time the injury occurred, had any knowledge or information whatever as to the presence of the plaintiff near or in the vicinity of said blast when the same was fired; and that when the injury occurred he was a trespasser on said premises, had no right whatever to be there, and the servants of the said independent contractor had no reason to believe that he was on or near the premises at the time of the alleged injury. It is further averred that at the time of the explosion of said blast which injured the plaintiff due and timely notice and warning was given, but, notwithstanding this, the plaintiff, by his own contributory negligence, and with flagrant disregard of his own safety, brought upon himself all of the injuries of which he complains; and that, but for his own wrongful acts, and rashness, and disregard of his own safety as aforesaid, he would not have received the injuries complained of. The Globe Contracting Company, in the first paragraph of its answer, denied that at the time of the alleged injuries it was under the name of the Globe Contracting Company, or other name or style, a corporation with power to sue and be sued, contract and be contracted with, or had any other power or right. It appears from said answer that the company was duly incorporated under the laws of the state of Ohio, as required by law, on the 31st day of August, 1897, and that no such corporation was in existence in the state of Ohio or elsewhere prior to that date. The names of the incorporators are also set out therein. The second paragraph is a denial of negligence on its part, or that it caused the injury complained of. The third paragraph traverses all of the allegations of the petition as to the injury being received without fault on plaintiff's part, and again denies that the injuries received were the natural result of the gross, or any, negligence of the defendant. The fourth paragraph, in substance, alleges that timely notice was given of the blast, and that the injury resulted from plaintiff's own negligence. After the filing of the answer of the Globe Contracting Company, the plaintiff dismissed his action without prejudice as to said company. The reply of plaintiff is a denial that he was a trespasser upon appellant's track, or that he was on it without its knowledge or consent. It also denies that the persons who caused his injury by such blasting were the agents or servants of the Globe Contracting Company. It is admitted that the contract of November 26, 1896, was made, but denied that the work was performed pursuant to same at the time of the injury. It is further denied that the Globe Contracting Company was an independent contractor at the time of said injury, and that the contract aforesaid could, by its terms, be construed to make said Globe Contracting Company an independent contractor. It is also further denied that the appellant did not have control over the manner of doing the work other than as specified in said contract, or that it did not exercise other control at the time of the injury, or that the employés then engaged in doing said work and making said blast were the servants or agents of the said Globe Contracting Company, and not the servants of the railroad company. It is further denied that the railroad company did not know at the time of the injury of the presence of plaintiff near or in the vicinity of said blast, and that he was a trespasser, or that due and timely notice of the blast was given. Plaintiff also denies any negligence on his part. And it is averred that the work of blasting was being done at the time of the aforesaid injury by the defendant railroad company and the Globe Contracting Company, and that appellant was controlling and in command of the employés, agents, and servants who were performing the work of blasting and excavating, and who, by their gross negligence, caused the injury to plaintiff. The rejoinder of appellant traverses the affirmative averments of the reply. The trial resulted in a verdict and judgment in favor of plaintiff for $5,000, and, appellant's motion for a new trial having been overruled, it prosecutes this appeal.

The substance of the grounds relied on for a new trial are First. That the verdict, under the facts proven, is excessive, and appears to have been given under the influence of passion or prejudice. Second. That the verdict is not sustained by sufficient evidence, and is contrary to law. Third. That the court erred by giving, over the defendant's objection, instructions No. 1 and No. 5. Fourth. That the court erred by refusing to give instruction X at the conclusion of the evidence, and by refusing to give instructions No. 3 and No. 7 in the form in which they were asked by the defendant, and, over the objections of defendant, by changing and modifying said instruction No. 3 by adding thereto at the close thereof these words, to wit: "Unless the jury shall believe from the evidence that the defendant discovered plaintiff's peril in time to have avoided or prevented the injury, and after such discovery, if any, failed to exercise ordinary care to prevent or avoid the same;" and in changing and modifiying instruction No. 7, over the objections of defendant, made at the time, by adding the word "solely" thereto. The following are the instructions given by the court: No. 1. "The court instructs the jury that, although they believe from the evidence that Henry Tow was a trespasser, and by his own negligence went upon the right of way of the defendant,...