154 Ky. 39 | Ky. Ct. App. | 1913
Opinion op the Court by
— Reversing'.
■ In this action for damages for personal injuries, brought by plaintiff, Bob Laney, against the Chesapeake &Ohio Railway Company, plaintiff obtained a verdict and judgment for $200. The railway company appeals.
There is not much contrariety in the evidence. It appears that on August 8, 1911, A. J. Rittenberry was the foreman in charge of a section crew consisting of plaintiff and two other laborers. They were returning from their work on one of the company’s hand cars. When they reached Gfallop Station, in Lawrence County, Kentucky, they were overtaken by a rainstorm and repaired to a nearby store for shelter. The hand car was left on the track. In a few minutes- a freight train was heard approaching, and the four men ran to the hand
It is first insisted that the trial court erred in refusing to direct a verdict in favor of the defendant on the ground that the negligence of Preese, a fellow servant, was the proximate cause of plaintiff’s injury. In this connection it is insisted that the foreman did not contemplate that his order to. shove the car to the crossing would be obeyed before giving plaintiff an opportunity to get from in front of the car, and that Preese alone was negligent because he pushed the car while plaintiff was in front of it. The record, however, makes it clear that the whole affair took place "in a very brief space of time. The freight train was not far awray and was rapidly approaching. The section men were going to move the car from the track at the point where it stood. Had they done so, plaintiff would not have been injured. Had there been plenty of time to shove the car to the crossing a different question would be presented. As it was, an emergency existed. Immediate action was necessary. The order of the foreman necessarily contemplated immediate action. The foreman knew that plaintiff was in front of the car. "Without giving plaintiff an opportunity to get out of danger, he gav*e the order. To escape the approaching train the order had to be quickly obeyed. Under these circumstances we cannot say, as a matter of law, that the giv
It appears, however, that the court’s instruction authorized a recovery for ordinary negligence on the part of the foreman. The foreman and the plaintiff were in the same department of labor, but occupied the positions of superior and inferior. • We have repeatedly held that in an action, not resulting in death, a servant cannot recover for the negligence of a superior, unless the negligence be gross. Louisville & Nashville Railroad Co. v. Foard, 104 Ky., 456; Chesapeake & Ohio Railway Company v. Marcum, 136 Ky., 245. It follows that the instruction complained of is erroneous.
For the reasons given the judgment is reversed and cause remanded for a new trial. consistent with this opinion.