Louisville & Nashville R. R. Co. v. Smith
| Citation | 135 Ky. 462 |
| Parties | Louisville & Nashville R. R. Co. v. Smith |
| Decision Date | 26 November 1909 |
| Court | Court of Appeals of Kentucky |
Appeal from Jefferson Circuit Court (Common Pleas Branch, First Division).
Judgment for plaintiff, defendant appeals. — Affirmed.
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HELM & HELM and B. D. WARFIELD for appellant.
W. O. BRADLEY and SNODGRASS & DIBRELL for appellee.
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The appellee, Smith, at Blount Springs, Ala., while on his way to the depot from which passengers got on and off trains, was caught between the bumpers of the cabooses on two trains on the siding between the depot and the passenger platform. Both of his hands were crushed so badly that his right hand had to be amputated and his left hand is practically useless. To recover damages for the injuries sustained he brought this action, and upon a trial before a jury was awarded $12,500.
A reversal is asked upon four grounds: First, that under the laws of Alabama the plaintiff was guilty of contributory negligence in endeavoring to pass between the trains, which were attached to engines with steam up, and therefore the defendant's motion for a peremptory instruction should have been sustained; second, that the court erred in instructing the jury that they might find for the plaintiff, Smith, notwithstanding his contributory negligence, if they believed that when he came in peril from the trains the employes of the company in charge of the trains could, by the exercise of ordinary care, have discovered his peril and by ordinary care have prevented his injury; third, that the court erred in allowing the jury to award punitive damages if they found the defendant guilty of gross negligence; fourth, that the company's theory of its defense was not submitted to the jury, and the instructions given are involved in confusion.
The evidence upon all material points is conflicting but with the weight of it on any issue we are not particularly concerned, as the jury have the exclusive right, in cases like this, to decide controverted questions of fact. Therefore, having in mind only the controlling facts, and without attempting to set out the testimony in detail, we may say that the evidence is, in substance, as follows: Blount Springs is a small village immediately on the line of the appellant's railroad, and at the time of the injuries complained of it was frequented by a number of people who went there to visit the springs in the neighborhood. The appellee, a native of Texas, arrived in Blount Springs for the first time on the morning of July 22, 1907, and spent the day in and around the hotel and the village. About 5:40 in the afternoon he started on his way to the passenger platform for the purpose of meeting a friend he was expecting on the northbound Decatur passenger train that was due to arrive about the time he went to the station. The railroad at Blount Springs runs north and south, and on the east side of the road is situated the depot, the houses that constitute the village, and the springs. The track nearest to the depot is a long siding, and between this siding and the main track is the platform used by passengers in getting on and off trains standing on the main track.
At the time appellee started to go to this platform there were on the siding four trains. One of these trains, known as No. 12, was a long freight, headed north, that went in on the south end of the siding, and pulled up until its caboose was opposite the depot and then stopped. Soon thereafter No. 21, known as the "water train," consisting of an engine, two cars, and a caboose, backed in on the siding from the south end, and stopped with its caboose some 30 to 60 feet from the caboose of train No. 12 thereby leaving a space of that distance between the two cabooses immediately in front of the depot, through which persons going to and from the passenger train to the depot might pass. Shortly after the water train had backed in, a long freight train, known as No. 19, going south, also backed in on the south end of the siding, and stopped with its caboose some 40 to 80 feet from the engine of the water train. After this, passenger train No. 8, going north, also ran partially in on the south end of the siding, but could not go far enough to clear the main track on account of the freight trains. About the time that passenger train No. 8 went in on the siding, passenger train No. 5, going south, came up on the main track, and stopped in front of the depot to permit passengers to get on and off.
With the four trains on the siding, and the spaces before mentioned that had been left between them passenger train No. 5 going south could not pass passenger train No. 8 standing partially on the south end of the siding and partially on the main track. So that, when passenger train No. 5 started on its journey south, signals were given to the engineers on the water train and on train No. 19 to close up the spaces, in order that passenger train No. 8 might pull far enough in on the siding to allow passenger train No. 5 to pass in safety. But before the space between the cabooses in front of the depot was closed at all by the moving of the water train, a number of passengers and people had passed between the cabooses going to and from the train and the platform. Appellee was not at the depot or observing the trains when the space between the cabooses was 30 to 60 feet, or when the signals to close the space were given, or when the water train started back, but about the time he reached the depot on his way to the platform the caboose of the water train had been backed to within 3 to 10 feet of the caboose of train No. 12, and was standing still, and the caboose of train No. 19 had been backed close to the engine of the water train.
Just as appellee, who stopped, looked, and listened to ascertain if the passage was safe, stepped on the siding, the water train suddenly backed, and he was caught between its caboose and the caboose on train No. 19, which had never moved its position after going on the siding. The evidence is very satisfactory that when the water train by backing closed up the original space of 30 to 60 feet between it and train No. 19 to a distance of from 3 to 10 feet, it stopped for a few minutes, and it may be inferred from the testimony that the trainmen did not intend, at this time, to run it any closer to the caboose of train No. 19, and that the sudden movement of the water train that caught appellee was caused by the slack running out of train No. 21, the caboose of which had been stopped within a few feet of the engine of the water train, and striking the engine of the water train, thereby shoving it and its cars back.
At the moment appellee was injured the trainmen who were giving the signals that moved the water train and train No. 19, were standing between the siding and the main track, but before this, and when the passengers from No. 5 were being discharged and the signals to close the space were about to be given, these trainmen, and probably others, notified people to get out of the way; that the space would be closed. Whether or not any persons were on the rear platform of the caboose of the water train, or the caboose of train No. 12, when appellee was injured is sharply disputed; the evidence for the company being that one brakeman was on the rear platform of the water train caboose, and one brakeman on the rear platform of the caboose of train No. 12, while the evidence for the appellee is that there was no brakeman at that time on either of these cabooses. The evidence also conduces to show that, just as the cabooses came together one of the trainmen, and probably a spectator, holloed at appellee in an effort to warn him of his danger, but it was too late.
From this statement it may be summarized that there was evidence sufficient to sustain the verdict conducing to show: (1) That when the trains were put on the siding, and until passenger train No. 5 started, there was a space of from 30 to 60 feet in front of the depot between the cabooses, left for the purpose of permitting persons to go to and from the depot to the passenger train; (2) that when passenger train No. 5 started, it was intended to close the space of 40 to 80 feet between the caboose of train No. 19 and the engine of the water train, and to partially at least close the space in front of the depot between the caboose of the water train and the caboose of train No. 12, so that No. 8 might clear the main track and allow No. 5 to pass; (3) that when the caboose of the water train came within 3 to 10 feet of the caboose of train No. 12, the water train stopped, and after stopping for a few minutes it was put in motion, and its caboose caused to hit the caboose of train No. 12; (4) that at the time Smith was injured the bells on the engine of train No. 19 and on the engine of the water train were ringing; (5) that train No. 8, on which appellee expected the person he went to the depot to meet, would have reached the depot platform a few minutes after he started to go to the platform; (6) that appellee did not know anything about the movements of the trains until he went to the depot to cross, and then there was a space in front of the depot of 3 to 10 feet between the cabooses of train No. 12 and the water train, both of which were standing still; (7) that before appellee went between the cabooses, he stopped, looked, and listened to ascertain if it would be safe to cross, and had no warning or notice that it would not.
Upon these facts the court gave to the jury the following instructions:
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