Louisville & N.R. Co. v. Kirby

• Decision Date: 23 January 1917
• Citation: 173 Ky. 399,191 S.W. 113
• Parties: LOUISVILLE & N. R. CO. v. KIRBY.
• Court: Kentucky Court of Appeals

191 S.W. 113

173 Ky. 399

LOUISVILLE & N. R. CO. v. KIRBY.

Court of Appeals of Kentucky.

January 23, 1917

Appeal from Circuit Court, Rockcastle County.

Action by W. V. Kirby against the Louisville & Nashville Railroad Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

J. W Brown and C. C. Williams, both of Mt. Vernon, and B. D Warfield, of Louisville, for appellant.

Bethurum & Lewis, of Mt. Vernon, for appellee.

THOMAS J.

The appellee (plaintiff below) was a member of a crew of hands engaged in doing some concrete work for the appellant (defendant below) in Hardin county on and for some time previous to October 2, 1914. The foreman of the crew engaged in doing the work was one Hicks, and there were two classes of laborers composing the crew, one class including carpenters, whose duty it was to construct framework necessary to contain the concrete, and the other class being made up of those whose duty it was to mix and put the concrete in proper place. The wages of the carpenters were more than that of the concrete workers. Somewhere between one-fourth and one-half mile from the place where the work was being constructed was a boarding car located on a side track, and in traveling from the work to the boarding car it was necessary for the hands to ride a hand car. Thomas Floyd was a member of the crew, and was one of the carpenters while plaintiff was engaged in the concrete work. On October 2, 1914, while returning from dinner obtained at the boarding car, the hand car upon which plaintiff was riding jumped the track and threw him off, whereby he sustained injuries, to recover damages for which he filed this suit. A part of the crew was just ahead of the hand car on which plaintiff was riding; on this front car was the foreman, Hicks, while Thomas Floyd, one of the carpenters, and five others, including plaintiff, were upon the derailed hand car. In a way, but vaguely, it is alleged in the petition that the plaintiff, at the time of his injury, was a member of the crew of hands which had a foreman in charge, who was superior in authority to plaintiff and the other members, and whose orders they were compelled to, and did, obey. The negligence charged is stated in this language:

"That the agents and servants of the defendant in charge of said hand car, against this plaintiff's objections, and over the protest of the said plaintiff, managed and operated said car with such gross negligence and carelessness by running same too fast, and at too great speed; that said car jumped the track of defendant's road and injured his back, shoulder, arms, and left leg to such an extent that he is permanently injured; that the said foreman knew that the accident and injury would occur, and could have known that the injury would occur by the exercise of ordinary care; and the said foreman could have prevented the injury by the exercise of proper care. Plaintiff says he requested the foreman to have the persons then pulling said car not to run same so fast, and that the speed of same be lessened, but the said foreman refused to do so; that if his request had been complied with the said accident and injury would not have occurred."

It will be seen that there is an effort to charge and make the defendant responsible for the negligence of the other members of the crew, who, in conjunction with the plaintiff, were operating the hand car at the time. It is further claimed, in substance, that the alleged foreman in charge of the hand car negligently and carelessly permitted the car to be run "too fast," and that he could have prevented this by the exercise of proper care, but that he failed and refused to do so, although plaintiff appealed to him to slacken the speed of the car, and warned him of the danger. The answer put in issue all the allegations of the petition, and in other paragraphs relied upon the contributory negligence of the plaintiff, and alleged that the injuries to plaintiff, if any, were the result of the acts, negligent or otherwise, of his colaborers and fellow servants. The answer was controverted of record, and upon trial there was a verdict in favor of plaintiff for $500, upon which judgment was rendered, and to reverse which this appeal is prosecuted.

Several grounds are argued before us for a reversal, they being as follows: (1) Because of a variance between the grounds for recovery alleged in the petition and the proof; (2) because of failure of the court to give to the jury an instruction offered by the defendant to return a verdict in its favor; (3) because the verdict is excessive and not sustained by the evidence; (4) because of error committed by the court in the admission and rejection of evidence before the jury; (5) because of error committed in the giving and refusing of instructions to the jury; (6) because of improper statements made by plaintiff's counsel in his closing argument to the jury.

The argument of counsel for appellant on this appeal takes a very wide range, and discusses at more or less length many collateral and incidental questions which we will not attempt to follow or discuss in this opinion, confining ourselves to such of the points presented as we deem necessary for a proper and concise consideration of them.

Preliminary to a consideration of the first ground urged it may be said that two rules of practice are long and firmly settled in this state. One is that in suits for negligence if the negligence relied on is specified, the plaintiff will be confined in his proof to the establishment of the particular negligence alleged. Crane v. Congleton & Bro., 116 S.W. 341; Monroe v. Standard Sanitary Mfg. Co., 141 Ky. 549, 133 S.W. 214; Burch v. Louisville Car Wheel & Railway Supply Co., 146 Ky. 272, 42 S.W. 414; Moreland's Adm'r v. Indian Refining Co., 146 Ky. 760, 143 S.W. 395; Schilling v. Andrew Steel Co., 144 Ky. 544, 139 S.W. 809; Koke's Adm'r v. Andrew Steel Co., 149 Ky. 627, 149 S.W. 968; Palmer's Adm'r v. Empire Coal Co., 162 Ky. 132, 172 S.W. 97.

The other rule is that the proof must conform to the allegation. In other words, that allegation without proof and its converse are neither sufficient to entitle the litigant to relief. Some of the cases applying this rule, in addition to the ones above referred to, are McQuary v. L. & N. R. R. Co., 128 S.W. 330; Murray v. C. & O. R. R. Co., 139 Ky. 383, 115 S.W. 821; Rowe v. L. & N. R. R. Co., 143 Ky. 826, 137 S.W. 511.

Some of the incompetent testimony complained of in this case is that given by certain witnesses for the plaintiff, to the effect that those operating the hand car were...