Louisville & N.R. Co. v. Brown

• Decision Date: 09 January 1908
• Citation: 127 Ky. 732,106 S.W. 795
• Parties: LOUISVILLE & N. R. CO. v. BROWN.
• Court: Kentucky Court of Appeals

106 S.W. 795

127 Ky. 732

LOUISVILLE & N. R. CO. v. BROWN.

Court of Appeals of Kentucky.

January 9, 1908

Appeal from Circuit Court, Hopkins County.

"To be officially reported."

Personal injury action by Harry Brown against the Louisville &amp Nashville Railroad Company. From a judgment for plaintiff defendant appeals. Reversed, with directions for a new trial.

Benjamin D. Warfield and Clifton J. Waddill, for appellant.

Sypert & Phillips, for appellee.

CARROLL J.

Appellee who was a head brakeman on one of appellant's freight trains, while riding in the engine, was seriously injured in a head-on collision between the engine in which he was riding and one of appellant's work trains. The work train was on the main track on the time of the freight train, and although the engineer of the work train testified that he directed a brakeman to flag the freight, and supposed he had done so, it developed that he had not, and the freight, running at a high rate of speed, had no notice that the work train was on the track until the engine was within a few feet of it, and when it was too late to stop or reduce the speed or avoid a collision. As a result of the collision, appellee was thrown under a large mass of wood and iron, and so fastened that he could not immediately be extricated. While in this position, where he remained for about an hour, the wreck caught fire, and appellee believed, and, indeed, had good reason to believe, that he would be burned to death before he could be rescued; but fortunately, before the fire reached him, he was removed from his perilous position, and escaped with severe injuries to one of his feet and some other parts of his body. He alleged in his petition to recover damages that "the agents and servants of defendant, in charge of the trains and superior in authority to plaintiff, managed and operated the trains and their crews with such gross negligence and carelessness that they came together in a head-on collision, whereby he sustained permanent injury and suffered great mental and physical pain." In its answer, after traversing the material averments of the petition and charging that appellee was guilty of contributory negligence, it set up in a separate paragraph that "the collision was due solely to the ordinary negligence of the flagman of the work train, who was then and there in the same field of labor and the same grade of employment as plaintiff in the employ of a common master, and was not superior in authority, but was his fellow servant." On motion of appellee this defense was stricken from the answer. Upon the trial appellee recovered a judgment for $10,000, which we are asked to reverse (1) because the trial court erred in permitting testimony to go to the jury showing the negligence of the brakeman on the work train; (2) in striking from the answer the words before mentioned; (3) in failing to instruct the jury that there could not be a recovery unless the persons in charge of the work train were guilty of gross negligence; (4) in admitting testimony of appellee and other witnesses that while under the wreck of the colliding engines he was in danger of being burned to death; (5) in allowing photographs of the scene of the collision to be introduced in evidence; (6) that the damages are grossly excessive.

We will consider the first, second, and third assignments of error together. It was the duty of the engineer and conductor in charge of the work train to know that proper measures had been taken to flag the freight or notify it that the work train was on the track. They knew the freight was due, and that they were on the main track on its time. Although the engineer testifies that he directed a brakeman to flag the freight, and supposed he had done so, his attempted performance of duty will not relieve the company from liability for the accident. The conductor and engineer were in control of the work train, and were charged with the duty of taking every possible precaution to see to it that timely warning was given to the approaching freight. They, as well as the brakeman, were guilty of gross negligence, although the company would be liable to appellee if they, or the brakeman alone, had only been guilty of ordinary neglect. Neither the conductor nor engineer on the work train, or the brakeman who participated in their negligence and equally with them was guilty of a failure to discharge his duty, were fellow servants of appellee in the sense that appellee could not recover for their negligence. It has been frequently ruled by this court that a servant for injuries not resulting in death cannot recover from the master for the ordinary negligence of his superior officers. Kentucky Distilleries & Warehouse Co. v. Schrieber, 73 S.W. 769, 24 Ky. Law Rep. 2236; C., N. O. & T. P. Ry. Co. v. Palmer, 98 Ky. 382, 33 S.W. 199; Greer v. L. & N. R. R. Co., 94 Ky. 169, 21 S.W. 649, 42 Am.St.Rep. 345; Linck's Adm'r v. L. & N. R. R. Co., 107 Ky. 370, 54 S.W. 184. But this doctrine is limited in its application to cases in which the servant is injured by the negligence of the superior officer who has immediate control of or supervision over him. To illustrate: If appellee had been injured by the negligence of the engineer or conductor on his train, he could not recover damages against the company unless they were guilty of gross neglect. The reason of this rule is that the servant, when he engaged to work, undertakes that he will assume the ordinary risks incident to the employment, and will not hold the master liable for the ordinary negligence of those employés with whom he is engaged, whose actions and conduct he can observe and, if necessary, guard against.

This doctrine of assumed risk by the servant has been further extended by this court until now it is well established that a servant cannot recover from the master for injuries inflicted by the negligence of a fellow servant in the same grade of employment engaged in the same field of labor, and associated or working with the injured servant, however gross the negligence of the fellow servant may be. Hence, if appellee had been injured by the negligence of a fellow brakeman on the train he was working on, without any fault on the part of the conductor, or engineer, or other superior, or breach of duty on the part of the company, he could not recover in this action. In L., C. & L. R. Co. v. Cavens' Adm'r, 9 Bush, 559, the proposition before us was under consideration by the court, and it was said: "It is well settled that where one enters into the service of another he assumes to run all the ordinary risks pertaining to such service; and this means only that he cannot recover for any injury that his employer, by the exercise of ordinary care and prudence, could not provide against. And it is equally as well established that, where a number of persons contract to perform service for another, the employés not being superior or subordinate the one to the other in its performance, and one receives an injury by the neglect of another in the discharge of his duty, they are regarded as substantially the agents of each other, and no recovery can be had against the employer. Public policy requires that, where the laborers are coequals and engaged in laboring in the same field, or on the same railroad train, or in any other employment, each should exercise proper care in the conduct of the business, and look to it that his colaborer does the same thing; and, when he is told that this care and prudence is his only remedy against danger from the negligence of those employed with him, it not only makes him the more careful, but stimulates him to see that others exercise the same caution." And this principle was fully recognized and applied in L. & N. R. R. Co. v. Sanders' Adm'r, 44 S.W. 644, 19 Ky. Law Rep. 1941; Volz v. C. & O. Ry. Co., 95 Ky. 188, 24 S.W. 119; Dana v. Blackburn, 90 S.W. 237, 28 Ky. Law Rep. 695; Martin v. Mason & Hoge Co., 91 S.W. 1146, 28 Ky. Law Rep. 1333; Pitts, Hankins & Trundell v. Centers, 98 S.W. 300, 30 Ky. Law Rep. 311.

But when the servant is injured by employés of the same master who are not directly associated with him, and with whom he is not immediately employed, and whose qualifications for the place they occupy he has no means of knowing, and in whose selection he has no voice, and over whose conduct and actions he has no control, and against whose negligence and carelessness he cannot protect himself, he may recover damages from the master for injuries received through their negligence, whether it be ordinary or gross, and without any reference to the position or place the servant causing the injury holds. And so appellee, whose injuries were directly caused by the negligence of the employés on the work train, may recover from the company, without regard to which one of them was guilty of the neglect that resulted in his injuries. The distinction between the liability of the master for injuries to the servant, when the injury is caused by the neglect of those engaged directly with the servant, and when it is due to the carelessness of employés not immediately associated with him, was first recognized by this court in L. & N. R. R. Co. v. Collins, 2 Duv. 114, 87 Am.Dec. 486, in a case against the company to recover damages for personal injuries inflicted by the negligence of the engineer, where it was said: "The company is responsible for the negligence or unskillfulness of its engineer as its controlling agent in the management of its locomotives and running cars; and that responsibility is graduated by the classes of persons injured by the engineer's neglect or want of skill. As to strangers, ordinary negligence is sufficient. As to subordinate employés associated with the engineer in conducting the cars, the...