Louisville & N. R. R. Co. v. Collins

• Decision Date: 23 September 1865
• Citation: 63 Ky. 114
• Parties: Louisville and Nashville R. R. Co. v. Collins.
• Court: Kentucky Court of Appeals

63 Ky. 114

Louisville and Nashville R. R. Co. v. Collins.

Court of Appeals of Kentucky.

September 23, 1865

1. When, on a question of negligence, the testimony is conflicting, the jury have a right to decide the character of the negligence.

2. Although the plaintiff, suing for an injury resulting from the gross negligence of the defendant, may have been guilty of negligence, if, nevertheless, the injury might have been avoided by the proper care of the defendant, such co-operating negligence of the plaintiff will not exonerate the defendant.

3. Railway companies are required by law to observe, at least ordinary care, vigilance, and skill, so far as strangers are concerned, in operating their trains.

4. The responsibility of railroad companies for injuries resulting from the negligence or unskillfulness of its engineers, is graduated by the classes of the persons injured by the engineer's neglect or want of skill--as to strangers ordinary negligence is sufficient--as to subordinate employees, associated with the engineer in conducting the cars, the negligence must be gross; but as to employees in a different department of service, unconnected with the running operations, ordinary negligence may be sufficient.

5. Among common laborers, constituting a distinct class, no one of them, as between himself and his coequals, is the corporation's agent; and it is not liable to any one of them for injuries resulting from the acts or omissions of any other one of the class, although each of the company's employees would be its agent as to entire strangers to it.

APPEAL FROM WARREN CIRCUIT COURT.

OPINION

ROBERTSON JUDGE.

This appeal presents, for the first time, to the appellate court of Kentucky, a new and unsettled question, involving the legal liability of railroad companies for damages resulting to an inferior from the negligence of a superior employee while engaged in different spheres of employment in the common service of any such corporation.

The appellee, while employed by the Louisville and Nashville railroad company, as a common laborer, in loading and unloading its burthen cars engaged in carrying for its road cross-ties and iron, was required, with a co-laborer of the same class, to assist its engineer in righting in Bowling Green, Kentucky, a locomotive which seemed to be out of order, and the steam being up, the front wheels jacked, the hind wheels unscotched, the engineer on top, and the appellee working, as ordered, beneath--the engine moved forward and cut off one of the appellee's legs, and that motion being reversed by the engineer, the other leg, also, was cut off.

For that irreparable loss, dooming him to hopeless poverty and dependence, the appellee sued the appellant for tort, and recovered a judgment for $5,000 damages, as assessed by the jury.

The appellant denies that its engineer was guilty of culpable negligence, and insists, also, that, as he was competent and trustworthy, it is not responsible to his co-employee for his negligence, however gross.

The circuit court instructed the jury, that, if they believed that the accident resulted from the gross negligence of the engineer, the appellant was liable for it in this action.

After full and careful consideration, we are satisfied that the engineer was guilty of some negligence. The degree of it was a question of fact which, on such apparently conflicting testimony, the jury had a right to decide, and, whatever deduction may be most logical and consistent, we are also satisfied that the circumstances, as detailed by all the witnesses, authorized the jury to find that his negligence was " gross; " an elaborate analysis of all the facts would not, therefore, be either useful or pertinent in this opinion.

But the appellant assumes that the appellee's own fault contributed to the catastrophe, and it thereupon insists that the co-operation of even the gross negligence of the engineer will not sustain the action. The assumption is not sufficiently maintained, nor is the conclusion from it altogether unexceptionable or true.

The engineer does testify that he directed the appellee and his associate in the work to " block" the wheels, and says that such a precaution would have prevented the accident; but others, who heard all that was said, and saw all that was done on that occasion, do not corroborate, but by strong implication, negative his statement of that fact rather discredited by the incredible omission, and by his failure to see that danger, so imminent in his opinion, was not averted by a security so obvious to him and so easy to them; and his credibility is also impaired by his interest and zeal, and his conduct in hiding himself and abandoning his post in the appellant's service, almost immediately after the infliction of the injury on the appellee; and not only may we presume that the appellee, a young and unskilled laborer, was ignorant of the utility of scotching, but feel sure that the engineer either did...