165 Ky. 487 | Ky. Ct. App. | 1915
Opinion op the Court by
Reversing.
The appellee states that he had never seen'but one rail drawn previous to this time, by the use of a motor, but the evidence shows that in drawing’ rails under circumstances of the kind, it was customary among the miners to take positions upon each side, at about the distance these men did, and to await the drawing, unless the motorman informed them, that the particular operation was dangerous, and to go, further, away. There was proof showing that the customary and ordinary way to draw rails, under circumstances similar to the one in the instant case, was for the motorman to put on a slight degree of power at first and to move forward steadily, increasing the power, if necessary, and if a steady pull failed to remove the rail, he would then back the motor up to or near the end of the rail, producing some slack in the chain, and then go forward with a jerk, and thus loosen the rail, keeping the motor under control, and to immediately shut off the power when the rail was loosened. The' power could be withdrawn instantaneously. Thus operated, it was contended the persons- present incurred no danger from injuries, such as. occurred to appellee.
The appellee filed his petition against appellant to recover damages for the injuries sustained by him. In his petition he alleged that the motorman, Edwards, was incompetent for his duties, and an unfit servant to operate a motor; that he was reckless and careless in the operation of the motor; that the incompetency, unfitness, . recklessness, and carelessness of Edwards to handle, and in handling the motor, was the sole, direct, and proximate cause of appellee’s injuries; that his incompetency, unfitness, carelessness, and recklessness, in the operation of the motor, was known to appellant, or could have been known by it in the exercise of ordinary care, but was unknown to appellee, and could not
The appellant, by its answer, denied the allegations •of the petition, and, also, plead contributory negligence ..lipón the part of appellee, and that the injury he received wás one of the assumed risks of his employment. The affirmative allegations of the answer were denied , by reply. .
tJpon the issues thus made up, a trial was had before the court and a jury, which resulted in a verdict of the jury in favor of appellee, fixing the' damages at :$7,000.00, and a judgment of the court in accordance •.therewith.
The appellant filed grounds and moved the court to .grant a new trial, which was overruled by the court. Exceptions were properly taken and saved.
’ The grounds relied upon for reversal of the judgement are:
First. The court erred in admitting incompetent ■evidence over the objection of appellant.
Second. The court erred in overruling' appellant’s rmotion for a direct verdict in its favor, by the jury, at the close of the evidence of appellee, and at the close of -all the evidence.
Third. ' The court erred in giving instructions to the .jury, and in refusing to instruct the jury, as requested by appellant.
Upon the trial, and over the objection of the appellant, the appellee was permitted to prove by various witnesses, that after the. time of the transaction, in which appellee received his injuries, they heard the ■ superintendent of the appellant’s mines, who was in authority" at the time the injuries were sustained, make • declarations to the effect, that Edwards, the motorman, was, too, reckless to be intrusted with the operation of the motor. It is not necessary to state the names of •■ these witnesses, or the declarations, which they proved, . were made by the superintendent. Upon the issues, as to whether or not the appellant knew, or by the exercise of ordinary care, could have known of the incompetency and unfitness of the motorman to operate and handle : its motor, in performing the duties incumbent upon the motorman, in the operation of its mines, and the négli- . gence of appellant in employing and retaining in its ■ employ such an incompetent servant, the declarations -of the mine superintendent, who had the authority " to
The authorities relied upon by the appellee to justify the proof of the declarations of the mine superintendent after the injuries were sustained, do not bear out such a conclusion. They are all cases, wherein declarations of the parties participating in the act, resulting in the injury, were admitted upon the ground that they were a part of the res gestae. In Brown v. Louisville, 21 R., 995, the statement allowed to be proved was made by the injured party, who had fallen from a car, and the declaration was made as to how the fall occurred, just as she was being taken up from the ground;
In L. & N. R. R. Co. v. Shaw’s Admr., the declaration was that of a man seeking damages on account of being kicked from a train, and was a statement made to that effect, within four or five minutes after the occurrence, and as quickly as he was found. In Floyd v. Paducah Ry. Co., 23R., 1077, the statement was that of the motorman, as to how the train happened to run upon
In L. & N. R. R. Co. v. Earl, 94 Ky., 368, a brakeman was injured by a fall, and within a few seconds thereafter, the statement was made by him, which was held to be a part of the res gestae. In McLeod, Receiver v. Ginther’s Admr., 80 Ky., 401, the injury resulted from a collision of two trains, and the statement allowed as res gestae was made within a minute or two by one of the train men, and while the injured were being sought for. The case of L. & N. R. R. Co. v. Foley, 94 Ky., 220, does not seem to be in line, entirely, with the other adjudications of this court, but as was said by this court in McLeod v. Ginther’s Admr., supra:
“What constitutes res gestae is often difficult to determine, as the relationship of facts, When the thing done is composed of different agencies and actions, separated more or less in point of time and manner of performance, is not always palpable, and though necessary, may be frequently obscured by the multiplicity of: particles which go to make up the main fact under consideration (1 Greenleaf, Sec. 108). Hence the particular facts of each case must determine the relevancy of declarations sought to be proven as part of the acts or facts constituting and legally belonging to the cause of action.”
In I. C. R. R. Co. v. Outland’s Admrx., 160 Ky., 725, this court, further, said:
“Declarations admissible as part of the res. gestae must, as a general rule, be made by one of the actors in the affair, contemporaneous in point of time with the particular transaction, at or near the place of its occurrence, and must explain the main fact; but a declaration so far removed in point of time from the main fact as to make it a mere narrative of a past transaction, or a declaration, which does not explain the principal fact, or which was made at some distance from the place of its occurrence, is not admissible as substantive evidence, as a part of the res gestae.”
This doctrine is stated in Greenleaf, Section 107; Elliott on Evidence, Vol. 1, Section 542; and upheld in I. C. R. R. Co. v. Houchins, 31 R., 93; L. & N. R. R. Co. v. Ellis, 97 Ky., 330; L. & N. R. R. Co. v. Molloy, 122 Ky, 219, and in many other cases.
The evidence was sufficient upon the cause of action stated in the petition and amended petition to submit ■the case to the jury.
The contention of appellant that the court erred in not instructing the jury peremptorily to find for it,- on account of the alleged contributory negligence of appellee, is not meritorious. He was engaged in the line of his duty; he had a right to assume, without actual knowledge to the contrary, that the motorman was a competent and fit person to operate the' motor; when the motorman prepared to draw the rail, the appellee took a position at a place customary and usual under such circumstances for miners engaged as he was, to take position. If the motor was carefully and properly operated, there was no danger, which could be obvious to any one. It is true, that he was an experienced man in the work of mines, but it does not appear that he had any experience with .the operation of a motor, under such circumstances. He was not the superior servant of the motorman, and he had no authority to control him in the manner of handling the motor. There can be no doubt, that it is the duty of the servant to exercise that degree of care which is commensurate with the character of his occupation, and if by his negligence he comes to injury, he has no right to complain, although his master may have, also, been negligent. The act of
“If a servant voluntarily and unnecessarily puts himself in a dangerous position, where there are other positions, which he may take in connection with the discharge of his duties, which are safe or reasonably so, he cannot recover damages for an injury contributed to by his negligence in doing so, but to constitute negligence there must be reason to apprehend danger; and that as between two apparently safe positions, a ser-' vant fails to choose the one which proves to be safe in fact cannot be ascribed to him as negligence.”
The question as to whether or not appellee was guilty of contributory negligence should have been, as it was, submitted to the jury.
The instructions given seem to have fairly embraced the law of the case upon the evidence as heard upon the trial, and fairly presented the issues to the jury for determination, and the court did not err in refusing the instructions asked for by appellant, as the matters dealt with by them, so far as were proper to. be given, were embraced in the instructions given.
For the reasons above indicated, the judgment appealed from is reversed, and this cause remanded with: directions to proceed in conformity to this opinion.