Louisville & N.R. Co. v. Mitchell

• Decision Date: 07 June 1888
• Citation: 8 S.W. 706,87 Ky. 327
• Parties: LOUISVILLE & N. R. CO. v. MITCHELL.
• Court: Kentucky Court of Appeals

8 S.W. 706

87 Ky. 327

LOUISVILLE & N. R. CO. v. MITCHELL.

Court of Appeals of Kentucky.

June 7, 1888

Appeal from court of common pleas, Jefferson county.

Action by Robert S. Mitchell, appellee, against the Louisville &amp Nashville Railroad Company, appellant, for injuries received while in the employ of defendant in the capacity of brakeman.

Wm Lindsay and Barnett, Noble & Barnett, for appellant.

Brown Humphrey & Davie, for appellee.

HOLT J.

The appellee, Robert S. Mitchell, while in the employ of the appellant as brakeman, and when engaged in the hazardous work of coupling some freight cars, in the presence of and under the direction of the conductor, was caught by the wheel of one of them, and his ankle and foot so crushed that it had to be amputated. His theory as to the manner of the injury is, that after making the coupling, and before he had time to get from between the cars, there was a new movement of the train, under the direction of the conductor, by which he was knocked down and injured. The company, upon the other hand, claim that there was no new movement of the train; that it backed slowly and properly to the car that was to be coupled to it; that the appellee went between them, and made the coupling, and then, instead of coming out at once, walked between the two cars for three or four steps, as they continued to go backwards some six or eight feet from the force of the movement that was necessary to make the coupling, and in this way was caught and injured. The company now object to the judgment of $10,000 that was rendered upon the special verdict, upon several grounds. The petition after setting forth the manner and extent of the injury, avers that "the said action of said defendant's conductor in charge of said train, and the action of defendant in regard to said operating of said train, was negligent and careless, and the defendant was guilty of negligence, and the said injury to the plaintiff occurred by reason of the negligence and want of reasonable care on the part of defendant, and without any fault of the plaintiff." The degree of the imputed negligence is not stated, at least in express language. Waiving the question whether this may not be done, and whether it is not done in this instance by the statement of the manner of the injury, we are of the opinion that the use of the generic word "negligence" in the pleading in an action of this character is sufficient without averring its degree. This is not an action under the statute for a killing by "willful" neglect. If it were, it would have been necessary, inasmuch as the statute creates and defines the injury, to allege that the negligence was willful; but it is one at common law, for negligence. In such a case, the degree, whether willful, gross, or ordinary, need not be stated. It is a matter of proof, and not of averment. It is said in Chitty that a general averment of negligence authorizes proof of gross negligence. 2 Chit. Pl. 358, note e. In Abb. Tr. Ev. 583: "Gross negligence may be proven under a general averment of negligence." Another writer uses this language: "The declaration must aver the negligence or default of the company; but it need not describe the kind of negligence, or particular acts which constitute the default, or the names or positions of the servants by whose fault the injury was inflicted." Pierce, R. R. 393. Newman, in his work on Pleading and Practice, page 415, says, in substance, that where a statute creates and defines an injury by neglect, its particular degree must be averred in the language of the statute, or in equivalent words; but that in other cases the general allegation of negligence will be sufficient, as it "in general includes gross as well as ordinary negligence." Many cases might be cited in support of these text writers. Among them are Nolton v. Railroad Corp., 15 N.Y. 444, and Turnpike Co. v. Maupin, 79 Ky. 101. The last-named case was for an injury sustained by reason of a defect in a bridge of the company, and the court, in its opinion, says: "The allegation of negligence is sufficient to entitle the plaintiff to recover in an action like this for any degree of culpable negligence that may be established by the evidence." Why should not the general allegation of negligence authorize proof of gross negligence, where its existence is necessary to a recovery, equally with evidence of slight or ordinary neglect in a case where it is sufficient? Each are but subdivisions of it, and equally embraced by the term. There is some evidence that the injury to the appellee resulted from gross neglect. The pleading authorized its admission, and, as its existence was necessary to a recovery, the question was properly submitted to the jury whether the injury was thus caused.

The company contends that the interrogatories submitted to the jury were suggestive, and calculated to induce responses favorable to the appellee; that the court improperly refused to let them say whether the injury resulted from an accident which could not have been guarded against by the exercise of ordinary prudence upon the part of the train-men; that it failed to inform them that the burden rested upon the appellee not only to show the company's neglect, but his own freedom from any negligence; that some of the material findings are unsupported by the evidence; and that the damages awarded are excessive, resulting, in part, at least from the improper admission of evidence that the appellee had a family. The jury, in answer to the interrogatories, found that the appellee, when coupling the cars, was acting under the orders of the conductor; that when the coupling was made there was a momentary check of the train, but that it was in motion when the appellee was hurt, and that the conductor by signal caused the train to move on before the appellee had reasonable time to get from between the cars; that the gross negligence of the conductor in controlling the train caused the injury, and that he failed to use such caution as an ordinarily prudent person would have used under like circumstances; that the exercise of ordinary care by the appellee would not have avoided the injury; and that $10,000 in damages would reasonably compensate him for the mental and bodily suffering, and the impairment of his capacity to labor and enjoy life, arising from it. It is insisted for the company that the findings that there was a new movement of the train, that the injury resulted from gross negligence upon the part of the conductor, and that the exercise of ordinary care by the appellee would not have averted it, are altogether unsustained by the evidence. Whether this is so, and whether the verdict is so excessive as to warrant the intervention of an appellate tribunal, are the main questions to be considered. The special findings of a jury, like a general verdict, cannot be disturbed upon the ground that they are against the weight of the evidence, unless they are flagrantly so. The appellee testified, in substance, that by the direction of the conductor, and in his presence, he went between the cars to make the coupling; that after doing so, and before he had time to get out, he was injured by a new movement of the train. If this be true, the conductor was certainly chargeable with gross negligence. He was immediately present; he was controlling the train; he knew the appellee had gone between the cars by his orders to make the coupling, and that a new movement of the train would imperil his life. Under such circumstances it was his duty to see that it did not take place. Certainly, the absence of slight care in the management of so dangerous an agency as a railroad train is gross negligence. The conductor would not, for fear of...