Louisville & N.R. Co. v. Lewis

• Decision Date: 20 October 1925
• Citation: 211 Ky. 830,278 S.W. 143
• Parties: LOUISVILLE & N. R. CO. v. LEWIS.
• Court: Kentucky Court of Appeals

278 S.W. 143

211 Ky. 830

LOUISVILLE & N. R. CO. v. LEWIS.

Court of Appeals of Kentucky.

October 20, 1925

Appeal from Circuit Court, Lee County.

Action by J. B. Lewis against the Louisville & Nashville Railroad Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Hunt Northcutt & Bush, of Lexington, Rose & Stamper, of Beattyville, and Woodward, Warfield & Dawson, of Louisville for appellant.

J. Mott McDaniel, of Beattyville, Fred P. Caldwell, of Louisville and Leslie W. Morris, D. L. Hazelrigg, and Polk South, Jr., all of Frankfort, for appellee.

SANDIDGE C.

Appellee recovered judgment for $25,000 in the Lee circuit court in an action against appellant for injuries alleged to have been received by him as a result of its negligence while employed by it as switchman in its railroad yards at Hazard, Ky. The appeal has been prosecuted to reverse that judgment, and numerous grounds are urged upon this court as reasons for so doing. Eight different briefs have been filed, setting forth the contentions of the respective parties. Some of them are of large volume, others not so large, but, in view of the great length to which this case has been briefed by either side, the court feels that, in order to limit this opinion to a reasonable length, it will not be necessary to follow the various arguments made to the length they have gone. The opinion will be confined to what the court deems the salient points in the case.

It is insisted for appellant that the petition does not state a cause of action, and that a peremptory instruction should have been given for appellant for that reason. Appellee's right to recover in this case was predicated upon appellant's negligent failure to furnish him a reasonably safe place to work. Appellant insists that the petition is defective, in that it does not allege that appellant knew of the unsafety, or by the exercise of ordinary care should have known of it. We find the petition to charge appellant with so negligently operating one of its cars, upon which appellee was engaged in service as a switchman so close to the top of a shed standing alongside the right of way, and to have so negligently constructed and maintained its tracks in proximity to the shed that, while engaged in its service in the performance of his duty, he was knocked from the car and injured. The court is of the opinion that those allegations of the petition sufficiently charge appellant's knowledge of the unsafe condition of the place. Appellant could not construct its track close enough to a building standing alongside its right of way to be unsafe for trainmen engaged in its service without knowledge of that fact.

It is further insisted for appellant that the petition was defective, in that it did not plead that appellee did not know, and could not by the exercise of reasonable care have known, of the unsafe condition of the place furnished him to work. Under the general rule on the subject, appellant's position as to this question would seem to be well taken. The general rule, supported by numerous opinions of this court, is that, when a person sues the master to recover damages for injuries received by being put to labor in an unsafe place or with defective appliances, he must, to state a good cause of action, allege that he did not know that the place was unsafe or that the appliances were defective. L. & N. Railroad Co. v. Irby, 141 Ky. 145, 132 S.W. 393, and cases there cited. See, also, Raikes v. Payne, Director General, 198 Ky. 820, 249 S.W. 1020, and Idol v. L. & N. R. Co., 203 Ky. 81, 261 S.W. 878.

Under that rule, as was particularly pointed out in the Irby Case, supra, in case the petition contains merely a general charge of negligence, evidence of unsafe place or defective appliances may not be introduced for the servant, except to rebut evidence of contributory negligence, and it is error to instruct either as to unsafe place or defective appliances. The reason is that under a general charge of negligence the cause of action is predicated upon negligence committed by positive act or omission to act by the master, or any or all of his agents. In other words, a cause of action arising out of the master's failure to furnish the servant a safe place to work is a particular cause of action, and must be pleaded in order to authorize the introduction of evidence of or the submission of an instruction on unsafe place, and neither evidence of failure to furnish a safe place nor an instruction on that question is authorized under a general plea of negligence.

It appears that the petition herein is not predicated upon a general charge of negligence, but is appellee's effort to state a cause of action against appellant for negligently failing to furnish him a safe place to work. Tested by demurrer, the petition is defective, in that it does not allege that the appellee did not know of the unsafe condition, or by the exercise of reasonable care could not have known of it. No demurrer was interposed, however, and its allegations were denied by answer. The case then went to trial under the petition, defective in the respects pointed out, but which unmistakably was an attempt to state a cause of action against appellant for failure to furnish appellee a safe place to work. The testimony for appellant and appellee was developed fully as to all the elements necessarily embraced within a cause of action predicated upon the master's failure to furnish the servant a safe place to work. The evidence for appellee, as will more fully appear hereinafter, was sufficient to have entitled him to go to the jury under a properly pleaded cause of action. The instruction submitted the essential element omitted from the petition. The court, then, is clearly of the opinion that this presents a state of case in which the proof and judgment cured the defect in the petition.

In McKinney Deposit Bank v. Cyrus W. Scott Manufacturing Co., 207 Ky. 340, 269 S.W. 343, the latest utterance of this court on the question, the following from Stephen on Pleading, p. 148, was approved as the rule:

"Where there is any defect, imperfection, or omission in any pleading, whether in substance or form, which would have been a fatal objection upon demurrer, yet if the issue joined be such as necessarily required, on the trial, proof of the facts so defectively or imperfectly stated or omitted, and without which it is not to be presumed that either the judge would direct the jury to give, or the jury would have given, the verdict, such defect, imperfection, or omission, is cured by the verdict."

Appellant urges that it was entitled to a peremptory instruction at the close of the evidence, for the reason that there was no competent evidence that appellee was knocked from the car by the roof of the shed. To that contention we cannot agree. The evidence discloses that appellee as a member of a switching crew went in on a siding with a switch engine to pick up certain loaded freight cars. After the coupling was made, and while the switch engine was proceeding with the cars from the siding, appellee went upon the roof of the cars to release the brakes. After performing that duty on the several cars being moved, while attempting to descend from the roof of the rear car of the cut by means of the ladder extending from the roof over its side at the rear end, in order to go ahead and throw the switch, appellee was knocked from the car and received the injuries. He admitted that he did not see what struck him, as he was rendered unconscious by the blow; but he testified that he was knocked from the car by something. His evidence establishes that he did not inadvertently or by misfortune fall from the car, but that he was knocked from it. He was found lying across one rail of the track on his back, his body being about half on either side of the rail. He was found immediately under the corner of a shed standing alongside the track.

Within 10 minutes after his injury the car from which he had been knocked was moved back to that portion of the track opposite the roof of the shed, and actual measurements were made, which demonstrated that there was between the edge of the car at the point where the ladder runs from its roof and roof of the shed a clearance of only 17 inches. In attempting to descend the ladder from the roof of the car as it was moving, appellee was facing the opposite side of the track from the shed. His testimony established beyond question that while attempting to leave the roof of the car by means of the ladder provided for that purpose he was knocked from the car by something which he did not see. He was found lying across one rail of the track immediately under the shed. The measurements taken a few minutes later established beyond question that one undertaking to descend from the roof of the car from which appellee was knocked by means of the ladder provided for that purpose would necessarily be knocked from the car if it then were passing the shed. Nothing else was shown to have been so located as to knock him from the car. Under that state of case it cannot be said that there was not sufficient evidence to make it a question for the jury as to whether or not appellee was knocked from the car by the roof of the shed.

Appellant urges that a peremptory instruction should have been given for it on the ground that appellee assumed the risk. Appellee meets that contention with the contention that appellant interposed no plea of assumed risk and that therefore its contention above cannot be upheld. We think the answer to the question must be found in the evidence. Regardless of whether or not appellant has interposed a plea of assumed risk, if the evidence discloses that the injury has resulted from no negligence upon the...