Louisville & N.R. Co. v. Foley

• Decision Date: 28 March 1893
• Citation: 21 S.W. 866,94 Ky. 220
• Parties: LOUISVILLE & N. R. CO. v. FOLEY.
• Court: Kentucky Court of Appeals

21 S.W. 866

94 Ky. 220

LOUISVILLE & N. R. CO. v. FOLEY.

Court of Appeals of Kentucky.

March 28, 1893

Appeal from court of common pleas, Jefferson county.

To be officially reported.

Action by M. J. Foley against the Louisville & Nashville Railroad Company to recover for injuries sustained through defendant's alleged negligence. There was a verdict for plaintiff, and defendant appeals. Reversed.

Helm &amp Bruce, for appellant.

Humphrey & Davie, for appellee.

LEWIS J.

This is an appeal from a judgment in favor of M. J. Foley, against the Louisville & Nashville Railroad Company, for $5,000 in damages on account of a personal injury. It is stated substantially in the petition that August 18, 1889, plaintiff was in employment of defendant as brakeman on a freight train which, having about 11 P. M. started on a run from the freight yard in Louisville, became, when it reached East Louisville, disconnected, by reason of the coupling machinery of two cars breaking or becoming loosened. That he was thereupon directed by the conductor to recouple the two cars and while he was between them for that purpose the conductor signaled the engineer to back the locomotive, to which were attached 5 of the 25 cars composing the train, but did not warn plaintiff he had done, or was about to do, so, and in consequence of such failure his hand was caught between drawbars of the two cars when they came together, and injured. That said drawbars could not be safely or properly used together, because not on a level,-one being about four inches higher than the other,-and that only a short link with which to couple the cars was provided; consequently performance of plaintiff's duty was rendered on that occasion extrahazardous. That the locomotive and cars attached to it were backed on a down grade without brakes being fastened so as to moderate their speed, and as a consequence the engineer lost control, and they moved to the stationary part of the train more rapidly than would have been, otherwise, the case. It is further stated that the condition of the drawbars and character of link, as described, were known to the conductor, but not to plaintiff until the accident occurred.

The evidence does not satisfactorily show the conductor was negligent as to the matter of signaling the engineer to back the train; and for that reason, and because it is, in general terms, alleged in the petition that the injury would not have been done but for such negligence of the conductor, counsel argue that the verdict is not supported by competent and relevant evidence. But it is elsewhere in the petition alleged that the injury resulted from backing the locomotive and cars in the negligent manner mentioned, and from inequality and unevenness of said drawbars, and shortness of the link, as well as from negligence of the conductor in signaling the engineer to back without warning to plaintiff. And as the other facts stated show, prima facie, an actionable injury, independent of negligence of the conductor in the particular charged, it was competent for plaintiff to prove all circumstances legitimately connected with the occurrence, and for the jury, under proper instructions, to inquire and find whether defendant was liable by reason of negligence of the conductor, engineer, or other employe in respect to defects of the coupling machinery, or manner in which the locomotive and cars were backed; for if the injury to plaintiff resulted from either of the alleged causes, or from the two combined, right of recovery existed, whether the conductor was or not guilty of negligence in the particular matter mentioned. The lower court, therefore, properly instructed the jury that if the injury was caused by improper or defective appliances furnished plaintiff by defendant with which to perform the duties required of him, and defendant knew or might have known of their condition and character by use of ordinary care, and plaintiff did not know thereof, the law was for him, and the jury should so find. Equally pertinent and proper was an instruction to so find if the...