Louisville & N. R. Co. v. Cornett's Adm'r

• Decision Date: 27 January 1931
• Citation: 237 Ky. 131,35 S.W.2d 10
• Parties: LOUISVILLE & N. R. CO. v. CORNETT'S ADM'R.
• Court: Kentucky Court of Appeals

35 S.W.2d 10

237 Ky. 131

LOUISVILLE & N. R. CO. v. CORNETT'S ADM'R.

Court of Appeals of Kentucky

January 27, 1931

Appeal from Circuit Court, Letcher County.

Action by Ance Cornett's administrator against the Louisville &amp Nashville Railroad Company. From a judgment for plaintiff defendant appeals.

Reversed.

Ashby M. Warren and Henry W. Willen, both of Louisville, D. I. Day and L. E. Harvie, both of Whitesburg, and C. S. Landrum, of Lexington, for appellant.

Astor Hogg and H. L. Moore, both of Whitesburg, for appellee.

WILLIS J.

Ance Cornett was struck by a passenger train of the Louisville &amp Nashville Railroad Company and sustained fatal injuries. His administrator instituted an action against the railroad company to recover damages for his death. At the first trial of the action the circuit court directed a verdict for the defendant. The administrator prosecuted an appeal to this court, and the judgment was reversed. Cornett's Adm'r v. L. & N. R. R. Co., 233 Ky. 797, 26 S.W.2d 1031. At the last trial there was a judgment for the plaintiff for $5,000, and the railroad company has prosecuted the present appeal. The right to a reversal is rested upon complaint of the instructions given and refused, and a contention that the verdict of the jury is palpably against the evidence.

It was decided upon the former appeal that the evidence for the plaintiff respecting the character of the place of the accident was sufficient to take the case to the jury upon the issue whether or not the company owed a duty to maintain a lookout for pedestrians. It was further held, if the jury should find that a lookout duty was owed, that it was then the duty of the defendant's servants in charge of the passenger train to exercise ordinary care to avert injury to Cornett, after his peril was discovered, or, by the exercise of ordinary care, could have been discovered. The evidence for the plaintiff, as construed by this court on the first appeal, tended to show that Cornett was injured at a place where he had the right to be; and if a lookout duty was due him, as the jury might have found from the evidence, it was the duty of defendant's servants to exercise ordinary care to avert injury to him. The plaintiff's evidence, as explained in the opinion of this court on the former consideration of the question, made out a case to submit to the jury, first, whether, on account of the use by the public of the place in question, a lookout duty was owed; and second, if that duty was owed, whether it was violated; and, third, whether such violation, if any, caused the injury to Cornett. If the peril of Cornett was discovered, or could have been discovered by the exercise of ordinary care, in time to have averted the accident, and the agents of defendant negligently failed to exercise such care either in discovering or in averting the danger after discovery, and thereby caused the injury, the plaintiff was entitled to recover. The contributory negligence of Cornett, if any, constituted a defense in so far as any breach of duty on the part of defendant was involved, except a negligent failure to act after his peril was discovered, or could have been discovered, by the degree of diligence exacted by the law under the circumstances shown.

Under the doctrine of discovered peril, which prevails in this state, the prior contributory negligence of the injured person is not material. Where both parties are negligent, the one with the last clear chance to avert the accident, notwithstanding the negligence of the other, is held wholly responsible. Peak v. Arnett, 233 Ky. 756, 26 S.W.2d 1035; Louisville Ry. Co. v. Broaddus, 180 Ky. 298, 202 S.W. 654; Myers v. Cassity, 209 Ky. 315, 272 S.W. 718.

If a defendant be aware of a plaintiff's peril, or oblivious to it only through culpable carelessness, and has in fact a later opportunity, by the exercise of due care to avert the accident, he is deemed responsible for the consequences of his failure to embrace the final chance of avoiding injury. Kansas City Southern Ry. Co. v. Ellzey, 275 U.S. 236, 48 S.Ct. 80, 72 L.Ed. 259; Mann's Ex'r v. Leyman Motor Co., 234 Ky. 639, 28 S.W.2d 956.

The opinion of this court upon the first appeal of this case was based upon the evidence for the plaintiff alone. Since it was substantially the same upon the second trial, our interpretation thereof constitutes the law of the case and controls, not only the circuit court, but this court as well. L. & N. R. Co. v. Rowland's Adm'r, 227 Ky. 841, 14 S.W.2d 174. But the defendant at the last trial introduced evidence which tended to show a state of facts entirely different from the situation manifested by the plaintiff. It produced testimony to the effect that Cornett was riding upon the freight train which was on the track parallel to the one the passenger train was using, and proceeding in the opposite direction; that he boarded the freight train on the east side and crossed to the west side, and alighted therefrom, and stepped immediately in front of the passenger train, when it was impossible for anything to be done to save his life. The fireman testified that he was maintaining a constant lookout, and, when Cornett stepped in front of the train, the whistle was being sounded and the bell was ringing.

It is apparent from this summary statement of the ultimate facts, which the defendant's evidence tended to prove, that the appellant was not liable for the death of Cornett, if it was brought about in that manner. It was necessary, therefore, for the jury to determine the facts, and for the court to submit to that tribunal by appropriate instructions all the issues raised by the pleadings and the proof, if seasonably requested so to do.

The record does not show that the plaintiff offered any instructions, but the defendant offered several which were refused. It is frankly conceded in appellant's brief that none of the instructions offered by it were in proper form but it is insisted that they contained suggestions which should have been embodied in correct form and given to the jury for its guidance. It is a rule of practice that the trial court is required to give appropriate instructions when those offered, although defective in form, embrace principles of law...