111 Ky. 41 | Ky. Ct. App. | 1901
Opinion op the court by
Affirming.
Appellee brought suit against appellant railroad company, alleging that he was a brakeman in the employ of' the company, which was the owner of and engaged in ojierating a line of railroad from Scottsville, Ky., to Gallatin, Tenn., and that, while he was so emjiloyed, by reason of the gross negligence of the company in suffering the ties of its roadbed at a place in Sumner county, Tenn., to become rotten and defective, the rails spread under the weight of the cars, a car was derailed, and appellee thrown violently to the ground and injured', for which he sought damages.
The company answered, denying the averments of negligence, and pleading contributory negligence, which was denied by the reply. The trial having resulted in a. verdict and judgment for appellee, the company urges numerous grounds for reversal.
A ground insisted on with some degree of earnestness is that the demurrer should have been sustained, because the pleading shows that the injury was received in Tennessee, and there is no allegation concerning the pleasure of damages which, under the Tennessee law, ought to be applied by the jury. In support of this proposition, Bruce’s Adm’r v. Railroad Co., 83 Ky., 174, is cited. It is admitted that that case was upon a cause of action given by the Tennessee statute, and sought a recovery not allowed by the common law. The existence and nature of the Tennessee statute under which that suit was brought were specially set up in the petition, and so the question here raised was not presented in that case. The court there
It is argued that the evidence show's that appellee was not injured by the defective ties, but by a defective running-board on the top of a car which was not derailed. There was considerable conflict of testimony, and some evidence tending to show that appellee may have jumped from the car on which he was, as the car which left the track went over upon the opposite side of the road from that on which appellee was found. This1, however, was a question peculiarly for the jury, and was properly submitted to them under -the instructions. Nor do we think the case presented was such as would justify a peremptory instruction.
We are of opinion that the instructions correctly state the law on the question of ordinary and gross neglect. Appellee was entitled to recover for ordinary neglect, if proven, as those in charge of the repair of the roadbed were not -engaged in the same common employment with those engaged in running the train. In 2 Thomp. Neg., 985, it is said: '“It is the duty of railroad companies to keep their works and all portions of their track in such repair, and so watched and tended, as to insure the safety of-all who may lawfully be upon them, whether passengers or servants or others. They are bound to furnish a safe road, and sufficient and safe machinery and cars. The legal implication is that they will haA'e and keep a safe track, and adopt suitable instruments and means with which to carry on their business. They can provide all this by the use
Whole court sitting.