Louisville & N.R. Co. v. Grant

• Decision Date: 10 February 1928
• Citation: 2 S.W.2d 1063,223 Ky. 39
• Parties: LOUISVILLE & N. R. CO. v. GRANT.
• Court: Kentucky Court of Appeals

2 S.W.2d 1063

223 Ky. 39

LOUISVILLE & N. R. CO. v. GRANT.

Court of Appeals of Kentucky

February 10, 1928

Appeal from Circuit Court, Jefferson County, Common Pleas Branch Third Division.

Action by John B. Grant against the Louisville & Nashville Railroad Company. Judgment for plaintiff, and defendant appeals. Reversed, with directions.

Ashby M. Warren and Woodward, Warfield & Hobson, all of Louisville for appellant.

R. F Peak and Peak & Peak, all of Louisville, for appellee.

THOMAS J.

On March 31, 1926, the appellee and plaintiff below, John B. Grant, was serving the appellant and defendant below, Louisville & Nashville Railroad Company, as head brakeman on one of its freight trains going east from Louisville, and his position while the train was running was in the cab of the engine on a seat next to the window, through which he could maintain a lookout ahead. Besides the glass window there was an equipment attached thereto which is referred to in this record as the windstorm shield, and which was designed to protect the one maintaining the lookout when the window itself was opened. For some distance out of Louisville defendant maintains a double track a sufficient distance apart to leave a space between cabs of passing engines and between the outside walls of the cars of from four to five feet. It was late in the evening, and practically dark, and, while plaintiff's train was passing another one going in the opposite direction on the other track, and on the side where he was sitting, some unknown object struck, raked, or scraped the windstorm shield immediately in front of him with such force as to break the glass therein as well as its framing, and threw the glass into the cab, a small piece of which struck him in his right eye, destroying the sight, and which was afterwards removed because of the effects of the wound. He received other slight injuries, none of which was of a serious nature. This ordinary action was filed by him in the Jefferson circuit court against defendant to recover damages for his injuries upon the ground that, while he was in the performance of his duty at the place assigned him, and after the other freight train had passed the cab about half its length, "some heavy, hard, and dangerous substance attached to, or projecting from, the passing train, struck the engine in the cab of which this plaintiff was riding, and then struck the glass windstorm shield of the cab in which this plaintiff was riding with such force that said glass and particles thereof struck this plaintiff on the side of the head and in his eye," etc.

An amended petition averred that the cars of the passing freight train were defective and dangerous, and known to be so by defendant, or could have been known by the exercise of ordinary care, and by reason thereof the windstorm shield was broken, and plaintiff sustained his injuries in the manner indicated. The answer was a denial, with pleas of contributory negligence and assumption of risk. Appropriate pleadings made the issues, and the jury, under the instructions given by the court, returned a verdict in favor of plaintiff for the sum of $8,040. Defendant's motion for a new trial was overruled, and from the judgment pronounced on the verdict it prosecutes this appeal, relying upon a number of alleged errors, among which was the refusal of the court to sustain its motion for a peremptory instruction in its favor made at the close of plaintiff's testimony, and again at the close of all the testimony.

In disposing of that question, it becomes necessary to state the substance of the testimony upon the question as to how the injuries to plaintiff occurred. He testified that at the time he was in front on the seat on the left-hand side of the cab of the engine pulling his train engaged in looking out ahead through the window immediately in front of him, which was opened, but protected by the windstorm shield; that his train was running about 15 miles per hour, and he ""judged" that the passing one was running about 25 miles per hour, and that, after 10 or 12 of its cars had passed his cab, "the engine (in which he was riding) was sideswiped, and cut the windstorm shield off, threw it in, struck me on the head," injuring his eye and face. It was but a short distance from La Grange where his train was stopped, and he was taken into the "H. K. Tower" located there, and received first medical aid. He then described his injuries and sufferings and the treatment he subsequently underwent, none of which are pertinent to the question now under consideration. He stated that he first saw the passing train when its engine was in about 300 yards of the one on which he was riding; but he nowhere testified that he saw the object that struck the windstorm shield, and, consequently, did not know whether it was attached to, or in any manner emanated from, the passing train, although he was on the lookout ahead, as was his duty.

The fireman, who was introduced by plaintiff, was standing in the cab back of him, and on the same side he was riding, was asked and answered, on the point under consideration, these questions:

"Q. I will get you to tell the jury whether or not anything struck your engine outside of the windstorm shield? A. No, sir. Q. Did you look at it to see? A. Yes, sir. Q. Were there any marks on your engine? A. None whatever. Q. Was there any parts of that windstorm shield left? A. The back part of the frame.

Q. That was the upright strip of the frame? A. Yes, sir. Q. Did you see anything wrong with that train that passed you? A. No, sir. Q. Did you see anything projecting from it? A. No, sir. Q. You said a minute ago that 'we inspected the engine.' Who do you mean 'we'? A. Well, I did. Q. Was anybody with you? A. Not at the time I looked at it, no. Q. Did the flagman, Martin, inspect that engine? A. Not that I know of. Q. Did you see him inspect it? A. No, sir. Q. Did he call your attention to anything there? A. None whatever."

The engineer, who was also introduced by plaintiff, stated that "something struck my engine and struck Grant in the face," but that he did not see what it was either before or after it happened.

The rear brakeman testified that, after the train stopped at La Grange, he made some examination of the engine, and that he found a mark on its left side running up to the windstorm shield which did not cut the paint, but "it just made a hard straight mark like you take a stick and scratch a hard piece of wood," and that "from the looks, it was put on there when it knocked the window off." That witness was not on plaintiff's engine, but was elsewhere on the train at the time, and, of course, saw nothing that could have caused the accident. So that the only testimony in the case bearing upon the issue as to how the accident happened was that given by plaintiff, the fireman, and the engineer. Within a short while the passing train stopped at East Louisville, some three or four miles from where the accident happened, and its engine and all of its cars were examined by three or four witnesses, and nothing was found to indicate in the remotest degree that any object attached to, or projecting from, that train produced the accident. Under such condition of the testimony it is strenuously insisted by defendant that it was entitled to the peremptory instruction it asked, and that the court erred in overruling its motion therefor; while plaintiff's counsel argue at great length and with much force that the proof as above outlined brings this case within the maxim res ipsa loquitur, but which argument is forcefully combated by counsel for defendant.

A large portion of the brief for both sides is taken up with a review of cases from this court wherein the maxim was invoked as between master and servant, and among the cases discussed are: L. & N. R. R. Co. v. Allen, 174 Ky. 736, 192 S.W. 863; L. & N. R. R. Co. v. Campbell, 186 Ky. 628, 217 S.W. 687; Ashland Supply Co. v. Webb, 206 Ky. 184, 266 S.W. 1086; and L. & N. R. R. Co. v. Mannin, 217 Ky. 460, 289 S.W. 1089. Many others are referred to in our opinions rendered in those cases, and from which it will be found that, contrary to the general rule, this court applies the maxim as between master and servant, but only in extreme and very much circumscribed cases, and in a very restricted sense.

In the Allen Case, although it was recognized that some courts never apply the doctrine embodied in the maxim in cases between master and servant, yet that this court would apply it in a restricted sense, "where the thing which caused the injury is shown to be under the management or control of defendant or its servants, other than the one injured, and the accident is such as, in the ordinary course of things, does not happen, if those who have the management or control use proper care, slight circumstances pointing toward negligence on behalf of the defendant will authorize a submission of the question of its negligence to the jury. In other words, where the evidence shows that the accident is necessarily the result of defective conditions and can be explained upon no other reasonable hypothesis, circumstances indicating carelessness on the part of the defendant will produce such a condition as to authorize a submission of the case to the jury."

In the Webb Case the circumstances under which this court applies it as between master and servant were thus stated:

"However, this doctrine [res ipsa loquitur] is seldom applied in cases between master and servant, and is only applicable where the evidence shows the accident is necessarily the result of defective conditions, and can be explained upon no other reasonable hypothesis."

Not only in the last two cases referred to, but likewise in all the others from this court,...