Louisville & N.R. Co. v. Thomas' Adm'r

• Decision Date: 11 May 1916
• Citation: 170 Ky. 145,185 S.W. 840
• Parties: LOUISVILLE & N. R. CO. v. THOMAS' ADM'R.
• Court: Kentucky Court of Appeals

185 S.W. 840

170 Ky. 145

LOUISVILLE & N. R. CO. v. THOMAS' ADM'R.

Court of Appeals of Kentucky.

May 11, 1916

Appeal from Circuit Court, Laurel County.

Action by Leander Thomas' administrator against the Louisville &amp Nashville Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Geo. G Brock and H. J. Johnson, both of London, and Benjamin D Warfield, of Louisville, for appellant.

J. M. Robsion, of Barbourville, for appellee.

CLARKE J.

Leander Thomas, 21 years of age, was employed and began to work for the Louisville & Nashville Railroad Company as a laborer in a tunnel upon its line of railroad about 6 o'clock on the evening of July 13, 1914. A few hours thereafter a large rock fell upon and killed him, from a place at or about where the wall and arch of the roof of the tunnel joined.

In this action, filed by his administrator, a judgment was recovered against appellant for $4,000. The suit was originally brought under the state law, but by amendment before trial the federal Employers' Liability Act was relied upon for the recovery. Appellant's answer admits the applicability of the federal act, traverses the allegations of negligence and pleads contributory negligence and assumed risk. The following errors are urged here by appellant as reasons for reversal: (1) In admitting incompetent evidence for plaintiff and rejecting competent evidence for the defendant; (2) in refusing a peremptory instruction for appellant; (3) in refusing to give instructions A, B, and D offered by the defendant; (4) in giving on its own motion instructions that were given the jury; (5) that the damages are excessive.

1. The evidence complained of consists of: (a) Life tables to show the expectancy of the decedent; (b) proof of the dependency of the father and mother of decedent; (c) proof of his youthfulness and inexperience.

(a) Appellant by one of its witnesses introduced the life tables to show the expectancy of the father and mother, by which the period of pecuniary loss is, of course, governed in this case, and upon cross-examination appellee was permitted to show by the same tables the expectancy of the decedent. This proof for appellee was certainly competent to show that the expectancy of the decedent covered that of his mother and father, but not for any other purpose, and, had appellant requested it, the trial court would have limited it to that purpose. Not having made this request, and the evidence being competent for one purpose, appellant cannot now complain. Thornton's Employers' Liability Act, p. 121; Stearns Coal & Lumber Co. v. Calhoun, 166 Ky. 607, 17 S.W. 590; Cassidy v. Berkovitz, 169 Ky. 785, 185 S.W. 129; 10 R.C.L. 929; Trenton Pass. R. Co. v. Cooper, 60 N. J. Law, 219, 37 A. 730, 38 L.R.A. 637, 64 Am.St.Rep. 592.

(b) Appellant contends upon the authority of Garrett v. L. & N. R. R. Co., 235 U.S. 308, 35 S.Ct. 32, 59 L.Ed. 242, that it was necessary in order that appellee could recover under the federal Employers' Liability Act that he should have stated with more particularity than he did the dependency of decedent's parents. Having alleged it sufficiently, as we think, and appellant having traversed the allegation, we cannot now imagine upon what theory appellant bases its objection to the introduction of this evidence; for, if it was necessary, and it was, to plead their dependency, it was not only competent, but incumbent upon appellee to prove it. I. C. R. R. Co. v. Doherty's Adm'r, 153 Ky. 363, 155 S.W. 1119, 47 L.R.A. (N. S.) 31, and L. & N. R. R. Co. v. Holloway's Adm'r, 168 Ky. 262, 181 S.W. 1126.

(c) The proof of decedent's youthfulness and inexperience was not necessary to establish, and did not alter or affect the cause of action, but it certainly was competent upon the question of decedent's ability to render pecuniary assistance to his aged and dependent parents (L. & N. R. R. Co. v. Holloway's Adm'r, supra), and was not prejudicial to appellant, because his ability to render assistance to his parents was diminished rather than enlarged if the fact was established that he was youthful and inexperienced.

2. The court did not err in refusing to instruct the jury peremptorily to find for the appellant, because the evidence shows conclusively that decedent was not engaged at the time the accident befell him in a work of preparation for the safety of the place where he was working. Other employés under the direction of a superior had scaled and sounded the roof and walls of the tunnel in order to make safe the place where decedent was required to work, and he did not enter upon his duties at the place of the accident until it had been inspected and scaled for the purpose of rendering it a safe place for him to work, nor until he had been assured by his boss that the place was safe. Under these conditions he did not assume a risk that his superior assured him, after inspection, did not exist, and the authorities cited by appellant upon the question of assumed risk have no application here. Deceased was permitted to have no part in the work of inspection or preparation of the place where he was required to work upon assurances of its safety, and the rock fell upon him out of the darkness from a place he had been assured had been made safe. Shearman & Redfield, § 185; Gila Valley, G. & N. R. Co. v. Hall, 232 U.S. 94, 34 S.Ct. 229, 58 L.Ed. 521; Seaboard Air Line Ry. v. Horton, 233 U.S. 492, 34 S.Ct. 635, 58 L.Ed. 1062, L.R.A. 1915C, 1, Ann.Cas. 1915B, 475; L. & N. R. R. Co. v. Cason, 116 S.W. 716; Consolidation Coal Co. v. Moore, 166 Ky. 48, 178 S.W. 1136; Stearns Coal & L. Co. v. Calhoun, 166 Ky. 607, 179 S.W. 590; Wasioto & B. M. R. Co. v. Hall, 167 Ky. 819, 181 S.W. 629; C., N. O. & T. P. Ry. Co. v. Claybourne, 169 Ky. 315, 183 S.W. 903.

It is urged for appellant that the boss and the employés who assisted him in inspecting and scaling the wall and roof of the tunnel showed that their work was done thoroughly; that it was not shown by appellee where the rock fell from or how it came to fall; that he therefore failed to show any negligence upon the part of appellant from which the accident resulted. This statement of the evidence, however, is not entirely correct; for one of the employés who assisted in inspecting the roof and walls, when asked how the rock could have fallen if their inspection had been complete, said "he did not know unless they had overlooked this rock." Another one of these employés said "that all of us" (meaning those who had helped do the scaling and inspecting) thought the rock would fall. Still another witness said that the roof when struck with a hammer sounded "drummy," which indicated that it was loose, and, besides this, at the time of the accident decedent's boss had had one prop placed under some timbers to support the roof, and was having another prop sawed the proper length to have it placed as an additional support to the roof. All of this was certainly some evidence that appellant knew or ought to have known that the place in which the decedent was directed to work was not safe, from which it might reasonably be inferred that appellant was negligent in requiring decedent to work under this rock and under this roof.

Besides, mere proof of an inspection and preparation that the employés of appellant considered sufficient is not conclusive of no negligence when their statements are contradicted by the physical facts, as they were in this case. Huddleston's Adm'r v. Straight Creek Coal & Coke Co., 138 Ky. 506, 128 S.W. 589, and Northeast Coal Co. v. Setzer, 169 Ky. 245, 183 S.W. 553.

3. The instructions offered by appellant and refused by the court which it is insisted here should have been given are:

(a) Instruction A, that the verdict must be agreed to by the entire jury, which raises the same question as an objection to the sixth instruction given by the court permitting a verdict to be made by nine jurors. The verdict in this case was made by all 12 of the jurymen, and it would not seem that appellant was prejudiced by the instruction given or the refusal to give the instruction offered, even if it had been entitled to a verdict by the whole jury. However, it has been uniformly held by this court that a verdict returned pursuant to section 2268 of the Kentucky Statutes and section 248 of our Constitution by only 9 of the jurymen is not invalid in actions brought in our courts under the federal Employers' Liability Act, and that this provision of our law is not violative of the Seventh Amendment of the Constitution of the United States. C. & O. R. Co. v. Kelly's Adm'x, 161 Ky. 655, 171 S.W. 185; L. & N. R. Co. v. Johnson's Adm'x, 161 Ky. 824, 171 S.W. 847; L. & N. R. R. Co. v. Winkler, 162 Ky. 843, 173 S.W. 151; L. & N. R. R. Co. v. Stewart's Adm'x, 163 Ky. 823, 174 S.W. 744; C., N. O. & T. P. Ry. Co. v. Claybourne's Adm'x, supra. Nor has counsel for appellant convinced us our ruling upon this matter is not correct by the argument made here based upon our decisions in L. & N. R. R. Co. v.

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