Louisville & N.R. Co. v. Ross
| Decision Date | 29 March 1900 |
| Citation | 56 S.W. 14 |
| Parties | LOUISVILLE & N. R. CO. v. ROSS. [1] |
| Court | Kentucky Court of Appeals |
Appeal from circuit court, Jefferson county, common pleas division.
"Not to be officially reported."
Action by James Ross against the Louisville & Nashville Railroad Company to recover damages for personal injuries. Judgment for plaintiff, and defendant appeals. Affirmed.
Lyttleton Cooke and Edward W. Hines, for appellant.
Matt O'Doherty and R. C. Davis, for appellee.
The appellee, James Ross, brought this action in the Jefferson circuit court against appellant for damages for personal injuries. Appellee alleged that he was in the employ of appellant as switchman, and while engaged at his work he was run over by a train, and seriously injured,--his hip dislocated and his body bruised. The immediate cause of the injury is alleged to be that appellee was engaged in switching cars onto a side track in appellant's switch yard, called "Glass-Works Track," and, while running in front of the train to get a pin out of one car which had to be removed, and to which car they were to couple the train, by reason of the defective and insufficient ballast (being clay) between the rails of the track, and its being covered with snow, appellee slipped and fell on the track, and, before he could get up, was run over and injured. The negligence complained of is the defective ballast between the rails; the appellee alleging it to have been clay, and about a foot wide on top, and sloping towards either rail and alleging that it should have been of some other material than clay, and at least should have extended level to either rail. Appellee also alleged his want of knowledge of the defective condition of the track at that point. The answer constitutes a denial of all acts or omissions alleged to be negligence, and pleads contributory negligence,--that the accident occurred in the daytime, and that appellee did see and know, or by the exercise of the slightest care could have seen and known, of the condition of the track, and voluntarily assumed the position of danger, if it was in fact dangerous. On this issue a trial was had, and a verdict and judgment for appellee was rendered for $3,100; and appellant's reasons and motion for new trial having been overruled, this appeal is prosecuted.
The court, on the trial instructed the jury as follows: "The court instructs the jury that if they shall believe from the evidence that the switch or siding in defendant's yard where the plaintiff was injured was insufficiently ballasted and that by reason thereof it was dangerous to the employés of defendant necessarily using the same in coup ling cars and that because of the insufficient ballasting the plaintiff received the injuries of which he complains, and that the plaintiff did not know of the insufficient ballasting, and did not have an equal opportunity with the employés of the defendant who were charged with the duty of looking after its tracks to know of its condition, and, further, that the defendant, or its agents or employés who are charged with the duty of looking after its tracks, knew or might have known of its insufficient and dangerous condition by the exercise of ordinary care, if such was its condition, then the law is for the plaintiff, and the jury should so find, provided that they shall further believe from the evidence that the plaintiff did not contribute to cause his injuries by negligence upon his part, but for which he would not have been injured." The counterpart of this was given as to the condition of the track, plaintiff's knowledge, or his equal means of knowledge with defendant's servants, whose duty it was to look after the track, and of the servants' knowledge, who knew, or by the exercise of ordinary care would have known; and the jury were told that, unless they believed all those things, they should find for appellant. An instruction on contributory negligence and as to the measure of damages, as well as proper definitions of "ordinary care" and "negligence" were given. By these instructions given, the jury were required to find, and by their verdict they did find, that the track was insufficiently ballasted; that appellee did not in fact know of this defect, and did not have an equal opportunity with the employés of appellant whose duty it was to look after the track to know of its condition. And, further, the jury find that the employés whose duty it was to look after the track knew, or by the exercise of ordinary care could have known, that the track was insufficiently ballasted; and, further, that the defective condition of the track was the cause of the injury, without any contributory negligence by appellee. It is insisted for appellant that an instruction should have been given, telling the jury that appellee, by the exercise of ordinary care, could have seen or known of the condition of...
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