Louisville & N. R. R. Co. v. Wolfe

• Decision Date: 16 February 1882
• Citation: 3 Ky.L.Rptr. 576,80 Ky. 82
• Parties: Louisville & Nashville R. R. Co. v. Wolfe.
• Court: Kentucky Court of Appeals

80 Ky. 82

3 Ky.L.Rptr. 576

Louisville & Nashville R. R. Co. v. Wolfe.

Court of Appeals of Kentucky.

February 16, 1882

1. Negligence is the ultimate fact to be pleaded, and forms a part of the act from which an injury arises. It is the absence of the care in the performance of an act, and not the result of such absence. It is not, therefore, a conclusion of law, and may be pleaded generally.

2. The facts admitted by the pleadings, and established by proof show that appellant's original act of negligence in permitting the opening in the floor of appellant's platform to remain out of repair, made it impossible for appellant, or its agents, to be aware of appellee's peril in time to avoid the injury.

3. The first instruction was given at the instance of appellant, and therefore no complaint can be made.

APPEAL FROM CHRISTIAN CIRCUIT COURT.

FELAND & SEBREE AND W. LINDSAY FOR APPELLANT.

The effect of the contributory negligence of appellee cannot be avoided, unless it be shown that appellant, after becoming aware of the perilous situation of appellee, could, by the use of ordinary care, have prevented the injury. Appellee's reply fails to deny that he had full knowledge of the defect in the platform, and he sets forth no good reason why he fell into it. The instructions were error. (L & N. R. R. Co. v. Collins, 2 Duv., 507; 4 Bush, 495; 5 Ib., 1; 6 Ib., 574; Lou., Cin. & Lex. R. R Co. v. Mahoney, 7 Ib., 235; 13 Ib., 636; 9 Ib., 81; 10 Ib., 263; 12 Ib., 41; Sherman & Redfield on Negligence, 525; Redfield's American Railway Cases, 499; 11 East, 60; 24 Md. 84; 6 Hill 282; 24 Ver., 487; 22 Ib., 213; Redfield on Railways, sec. 193; 31 Md. 357; 25 Mich. 274; 21 Wis. 256.)

PETREE & LITTELL FOR APPELLEE.

It results from admitted facts that a dangerous hole existed in appellant's platform, and had so existed for months, known to appellant's agent, which caused the injury. The negligence was willful. (Sherman & Redfield on Negligence, sec. 11; Lou. & Portland Canal Co. v. Murphy, 9 Bush.) When the material facts are admitted, the question of negligence is a question of law. (Dolfinger v. Fishback, 12 Bush, 478; Am. Rep., 640; Board Int. Imp. Shelby Co. v. Scearce, 2 Duv., 577.)

OPINION

HARGIS, JUDGE:

It is alleged in substance by the appellee that there was a hole in the platform connected with appellant's depot; that the opening, and its dangerous character, were known to the appellant, but it negligently, wantonly, and willfully failed and refused to repair it, and while removing a box of freight from said depot to his wagon, having necessarily to pass over said hole, he fell into it, and broke the left patella or knee-cap of his leg, for which he prayed damages.

From a judgment, upon a verdict of $2,000 in favor of appellee, the appellant prosecutes this appeal, and raises the question, first, upon the pleadings, that the facts constituting contributory negligence, which it pleaded, were not denied, and therefore no verdict or judgment should have been rendered in appellee's behalf.

The allegation of the answer is, " that the plaintiff had full knowledge of said defect, and with his eyes wide open, and in open broad daylight, walked into said hole, and by his own negligence contributed to said injury, and thereby he alone is responsible for his misfortune."

To this the appellee replied, that " the plaintiff, Wm. R. Wolfe, for reply to defendant's answer, denies that he was guilty of any negligence at or before the time of the injury complained of in his petition, or that he contributed in any way by his negligence to the occurrence of said injury. He denies that defendant is relieved from responsibility for their gross and willful neglect by reason of any negligence on the part of the plaintiff."

It is contended by counsel that the reply fails to deny the substantive facts constituting contributory negligence, and only traverses the averment of negligence, which is but denying a legal conclusion.

The error in this position lies in the assumption that the allegation of negligence is a mere legal conclusion, and that the supposed substantive facts constitute contributory negligence, neither of which is true.

Negligence is the ultimate fact to be pleaded, and it forms part of the act from which an injury arises, or by which contributory negligence is made out. It is the absence of care in the performance of an act, and is not...