Louisville & N.R. Co. v. Earl's Adm'x

• Decision Date: 23 May 1893
• Citation: 22 S.W. 607,94 Ky. 368
• Parties: LOUISVILLE & N. R. CO. v. EARL'S ADM'X.
• Court: Kentucky Court of Appeals

22 S.W. 607

94 Ky. 368

LOUISVILLE & N. R. CO. v. EARL'S ADM'X.

Court of Appeals of Kentucky.

May 23, 1893

Appeal from circuit court, Hart county.

Action by James B. Earl's administratrix against the Louisville & Nashville Railroad Company to recover for injuries to her deceased husband. Judgment for plaintiff. Both parties appeal. On appeal of defendant affirmed, but reversed on cross appeal.

H. C Martin and Lewis McQuown, for plaintiff.

J. C Poston, J. P. Hobson, and J. J. Stamp, for defendant.

HAZELRIGG J.

The first paragraph of the appellee's petition sought damages of the appellant company by reason of its gross and willful neglect in crushing her intestate husband between two of its cars, and causing him great pain, anguish, loss of time, etc. The second sought damages for the loss of his life caused by the willful neglect of the appellant. Being required to elect, she proceeded on the cause of action set up in the first paragraph, and obtained a verdict for $4,000. The court regarded this as excessive, and required her to take judgment for $2,500; otherwise, as announced, a new trial would be granted. Accordingly, judgment for the latter sum was entered. Both parties complain, and it is evident that, if the company were entitled to a new trial, it should have been granted without the imposition of any terms; if not, the appellee should have had her judgment in pursuance of the jury finding. In either event the judgment for $2,500 is erroneous, and must be reversed. See Brown v. Morris, 3 Bush, 82.

The question then is, shall the appellee have judgment in conformity with the verdict of the jury, or shall the appellant have a new trial? The solution of the question depends on whether or not there were errors committed on the trial of the cause to the prejudice of the company. If yea then a new trial must be ordered; if nay, judgment for $4,000 must be entered. From the testimony it appears that Earl was a brakeman in the service of the company. When the train reached Munfordsville, moving north, the engineer turned over the engine to the fireman. The conductor was also off the train. It was a freight train, and some switching had to be done. Earl got off the cars at Logston's store, some 80 yards from the switch. The engine moved north, with some box cars attached, towards and over the switch. There a box car was "kicked in" on the siding. Some four of five minutes are saved by this process of "kicking in," and the conductor proves that they were in a hurry. After this the engineer backed to where Earl stood, who coupled it to the "dead" cars, when, on Earl's signal, it again started north "pretty fast." Earl, as was the usual custom, caught up with rear car, and was riding on the ladder on the side, intending to get off at the switch, where other switching was to be done; but the "kicked-in" car had not been rolled back far enough on the side track to allow a man's body to pass between it and the moving cars. This close proximity was noticed by the fireman-the acting engineer-on backing down, a few moments before, and he testifies that he slowed up to see if his cab would pass. Earl knew nothing of this, and, when he noticed it was he rode rapidly towards it, he could neither let go nor reach the top of the car. He tried the latter means of escaping the danger, but was caught and badly crushed. He lived 10 days in torture, and died. The plaintiff's evidence was to the effect that Earl took no part whatever, by signals or otherwise, in placing or locating the "kicked-in" car, and, while he might have seen its dangerous position if his attention had been attracted in that direction, he was engaged in the work of coupling the live to the dead cars, and then in watching the ladder he was reaching for, and could not have observed the danger.

It is insisted, in the first place, that the defendant was entitled to a peremptory instruction because of the negligence of the deceased, but we fail to perceive wherein he was negligent. The custom of brakemen riding on the ladder from one point of work to another was clearly established This was the well-known way of doing such work as was before Earl on this occasion. It was inexcusable negligence to leave the "kicked-in" car so close to the main track that the engineer's cab could barely pass it. This negligence caused the injury, and Earl is shown in no way to have contributed in thus locating this car. The fireman slowed up to insure the safe passage of himself, but unfortunately failed to observe similar care...