Louisville & N.R. Co. v. Pearcy

• Decision Date: 22 November 1910
• Citation: 140 Ky. 677,131 S.W. 1036
• Parties: LOUISVILLE & N. R. CO. v. PEARCY.
• Court: Kentucky Court of Appeals

131 S.W. 1036

140 Ky. 677

LOUISVILLE & N. R. CO. v. PEARCY.

Court of Appeals of Kentucky.

November 22, 1910

Appeal from Circuit Court, Knox County.

Action by John Pearcy against the Louisville & Nashville Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed.

James D. Black, J. W. Alcorn, and Benjamin D. Warfield, for appellant.

B. B Golden and McChord, Hines & Norman, for appellee.

CARROLL J.

The facts of this case are quite fully stated in the former opinion, that may be found in 121 S.W. 1037, and we will only restate such of them as appear to be necessary to understand the alleged errors relied on by counsel for appellant as sufficient to warrant a reversal of the judgment against it.

Premising that the only negligence complained of consisted in the failure of the engineer to stop in obedience to a signal and in running at too high a rate of speed, briefly, the evidence for appellee was to the effect that, when the engine went in on the house track to get the cars there standing and put them in the train, there was a car attached to the tender of the engine and three cars standing on the house track coupled together that when he opened the house track switch, for the purpose of letting the engine and car attached thereto in, he was then standing on the engineer's side of the engine, and gave him the signal to back; that in obedience to this signal the engineer backed in on the house track; that appellee then crossed over on the fireman's side of the engine, and ran ahead of the engine down to the point on the house track where the cars to be coupled were standing; that when he reached these cars a hasty examination disclosed that the coupler was not in proper working order, and he then stepped out from the track on the fireman's side and gave what is called a "steady signal"; that after giving this signal he again went to the coupler and tried to arrange it, when he found that it would take more time than he anticipated, and upon learning this he again stepped out from the track on the fireman's side and gave the stop signal, the engine at that time being about 500 feet from him; that when he gave the stop signal he heard the engine shut off steam, and, supposing it would stop in obedience to his signal, he again went back to the coupler for the purpose of putting it in condition to make the coupling and was engaged in this work about a minute, when he suddenly saw the car attached to the engine coming towards him at the rate of about eight miles an hour; that upon this discovery he attempted to get off the track, when he stumbled and fell, receiving the injuries complained of.

The testimony for the appellant is in substance that there was no car attached to the engine when it went in on the house track; that the three cars standing on the house track were not together, one of them being by itself and the other two about three car lengths off; that the engineer, in obedience to the signal to back in on the house track, did so; that after this, and before the tender of the engine came in contact with the first car standing on the house track, the fireman received a steady signal, and transferred it to the engineer, and within a moment or so afterwards a coupling was made to the first car, and then another signal to back was received by the fireman, who transferred that to the engineer, and in obedience to this signal the engine, with the car that had been coupled onto it, backed to where the other two cars were standing, making that coupling; that the engine at no time was running more than four miles an hour, and that no signal to stop was received either by the fireman or engineer; that the appellant was injured when the second coupling was made.

It will be observed that there are several material points of difference in the testimony for appellee and appellant. According to appellant's theory, the engine was not moved at a speed exceeding four miles an hour, and no signal to stop was received by either the fireman or engineer, and two couplings were made--one to the first car, and the other to the two cars standing some distance from it; while the theory of appellee is that a signal to stop was given, and in obedience to it the steam shut off, that only one coupling was made or attempted to be made, as all the cars on the house track were standing coupled together, and when this coupling was made the engine was backing at a speed of about eight miles an hour, and that he was injured when the first and only coupling was made or attempted to be made. The petition did not specify the negligence complained of, merely charging that appellee, "while in the line of his duty and under the direction and order of his superiors in that employment, who were the servants of the defendant, he was by and through the gross negligence of the defendant, its agents and servants and employés other than and superior to him in charge of that train, run down and run over by said train." So that, under the averments of this petition, the appellee had the right to rely for a recovery upon any negligent acts of the engineer, whether they consisted in failing to stop in obedience to a signal or in running the train at too high a rate of speed to safely make a coupling. Gaines v. Johnson, 133 Ky. 507, 105 S.W. 381, 32 Ky. Law Rep. 58.

The principal contention of counsel for appellant is that the peremptory instruction requested by it should have been given. The argument in support of this is that there was a total failure to show that the engineer received any signal to stop. It is true that the engineer testifies positively that he did not receive any signal to stop, from the appellee, or the fireman, or any one else, and that the fireman also testifies that he did not receive from the appellee, or any other person, any signal to stop, nor did he give such signal to the engineer. This being so, it is said that, although the appellee gave the signal to stop to the fireman, and although the fireman did receive this signal yet, if he failed to transfer it to the engineer, the company is not responsible, because the negligence that resulted in the injury...