Louisville Ry. Co. v. Hibbitt

• Decision Date: 07 June 1910
• Parties: LOUISVILLE RY. CO. v. HIBBITT.
• Court: Kentucky Court of Appeals

129 S.W. 319

139 Ky. 43

LOUISVILLE RY. CO. v. HIBBITT.

Court of Appeals of Kentucky.

June 7, 1910

Appeal from Circuit Court, Jefferson County, Common Pleas Branch Second Division.

"To be officially reported."

Action by Martin Hibbitt against the Louisville Railway Company. Judgment for plaintiff, and defendant appeals. Reversed.

CARROLL J.

Appellee Hibbitt, a motorman on a street car running on Fifth street was injured in a collision between the car he was operating and another of the appellant company's cars at the corner of Fifth and Market streets. The petition charged that the collision was due to the negligence of the motorman in charge of the Market street car. The answer was a traverse and plea of contributory negligence, and to this plea there was no reply. At the conclusion of the testimony offered for Hibbitt, counsel for the company moved the court to peremptorily instruct the jury to find for it; but this motion was overruled. Again at the conclusion of all the testimony a similar motion was made, which was also overruled. Thereupon the case was submitted to a jury and a verdict returned in favor of Hibbitt. Afterwards, in due time, the company by counsel moved for a judgment notwithstanding the verdict, and this motion was overruled. A reversal of the judgment in favor of appellee is asked upon two grounds: First, on account of the failure of the court to sustain the motion for a peremptory instruction; and, second upon the ground that the motorman in charge of the Market street car was a fellow servant of Hibbitt.

The plea of contributory negligence is an affirmative defense. It is a charge in substance that the injury of which the plaintiff complains was caused by his own negligence and except for which it would not have happened. The Code provides, in section 126, that "every material allegation of a pleading must, for the purposes of the action, be taken as true unless specifically traversed." And so we have held in a number of cases that unless the plea of contributory negligence is denied it must be taken as true. And taking it as true, there cannot of course be a recovery, as it stands admitted that the injuries complained of were caused by the negligence of the complaining party. L. & N. R. Co. v. Paynter's Adm'r, 82 S.W. 412, 26 Ky. Law Rep. 761; Brooks v. L. & N. R. Co., 71 S.W. 507, 24 Ky. Law Rep. 1318; L. & N. R. Co. v. Mayfield, 35 S.W. 924, 18 Ky. Law Rep. 224; Mast v. Lehman, 100 Ky. 464, 38 S.W. 1056, 18 Ky. Law Rep. 949.

It is insisted, however, that as the company introduced evidence conducing to show that Hibbitt was guilty of contributory negligence, and the jury was instructed that they could not find a verdict in favor of Hibbitt if they believed his injuries were caused by his contributory negligence, the omission in failing to reply to the plea was cured. And, further, that counsel for the company waived the right to complain after verdict of the failure to file a reply by introducing evidence upon the subject of Hibbitt's contributory neglect and asking an instruction based upon this evidence. But counsel for the company saved in the proper manner all its rights by requesting the court to direct a verdict for it upon the conclusion of the evidence for Hibbitt, and also at the conclusion of all the testimony. The motion for a peremptory instruction should have been sustained, and certainly the company ought not to suffer because of the error of the court committed over its objection and after it had done everything it could do to save its rights. This precise question was before us in Mast v. Lehman, supra, in which the petition was so fatally defective as not to entitle the plaintiff to a verdict. The court said: "At the conclusion of the trial the defendant moved the court to peremptorily instruct the jury to find for the defendant. This motion of defendant should have been sustained by the court, and would have been sustained if the court had been aware of the true condition of the pleadings. It is true the plaintiffs objected to the instruction; but in our opinion such objection did not relieve the court of its obligation to properly instruct the jury as to the law of the case based upon the pleadings and the proof. If the court had sustained this motion, as it was clearly his duty to do, it would necessarily have brought to the attention of the plaintiffs the defense which had been so carefully concealed from the very beginning of the case. And before the submission of the case to the jury he would have had an opportunity to have offered an amendment curing the defects in his petition, which, in furtherance of justice, it would have been the duty of the court to have allowed to be filed." For this error the judgment must be reversed; but as there may be a new trial, at which the plaintiff will be permitted to file a reply, we will consider the question raised by counsel that these motormen were fellow servants. If they were fellow servants, then Hibbitt cannot recover.

The fellow-servant rule is invoked in many cases but applied in few. This court is fully committed to the doctrine of what is known as the "association theory," or, in other words, that the master will not be excused for negligence resulting in injury to one servant which is inflicted by a fellow servant unless the servants are so engaged and situated as that each by carefulness and attention in the performance of his duties may protect himself from injury caused by the negligence of the person with whom he is working. In L. & N. R. Co. v. Brown, 127 Ky. 732 106 S.W. 795, 13 L. R. A. (N. S.) 1135, the court, following a long line of cases therein cited, said that: "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 this...