154 Ky. 675 | Ky. Ct. App. | 1913
Opinion op the Court by
Affirming.
John Benedict, while riding in tbe caboose of a local freight train owned and operated by the Illinois Central Railroad Company, lessee of the Chicago, St. Louis & New Orleans Railroad Company, was killed by a collision
The accident occurred on March 14, 1912, a few miles south of Clinton. The decedent, John Benedict, a young man about 25 years of age, was riding in the caboose of a local freight train. This freight train was standing near a trestle, and had just started on its journey when another freight train ran into it from the rear. Without giving the evidence in detail, it is sufficient to say that it not only shows that the engine of the rear freight train was in a defective condition, but that the engineer and fireman disregarded two or three signals indicating the presence of the other train immediately in their front. There was also evidence tending to show that the front train was not properly protected by the flagman. Indeed, if the weight of the evidence is to be believed, it presents a case of inexcusable negligence.
In addition to the question of negligence on the part of the defendants, two other questions are presented: (1) Was the decedent a passenger at the time of the accident? and (2) Was he guilty of contributory negligence ?
Upon the first question the evidence is to the effect that he was in the caboose in company with another passenger, and in company with the conductor and the other trainmen. The conductor admits that he reported the decedent as a passenger, and that he swore in the examination before the superintendent that decedent paid bim a fare of 42 cents. This evidence was admitted without objection. We think the evidence sufficient to' show that the decedent was on the train with the knowledge and consent of the conductor, and if so, he was a passenger. This conclusion does not conflict 'with the rule laid down in L. & N. R. R. Co. v. Webb., 99 Ky., 332. There the court held that the presence of the boy in the caboose with the knowledge of the conductor did not constitute him a passenger, because it was not the duty of the conductor to put the boy off before reaching the next stopping place. In the case under consideration, however, the train on which the decedent was riding stopped for several minutes just before the collision. If decedent was on his train without his consent the conductor could easily have put him off . at that point.
While the engineer in charge of the colliding engine was on the stand, he stated that the air pumps of that engine were defective. He was asked if he had notice of the condition of the air pumps. He stated that he had, and was then asked where he got the notice. He stated that he had gotten it from a report made by the engineer handling the engine just before the accident, and filed in the round-house at Mounds, Illinois. The further question was asked: “What did that report state with reference to that engine?” Over the objections of the defendants, the witness was permitted to state that the air pump was in a bad condition, and did not make
Complaint is made of the instructions because it is alleged that they assume that decedent was a passenger. While the instructions may be subject to verbal criticism, we conclude that defendants’ complaint in this respect is without merit. Fairly considered, the instructions leave no doubt that one of the issues to be passed on by the jury was whether or not decedent was a passenger at the time of the accident.
Another complaint of the instructions is based on the following addition to the instruction on contributory negligence:
“Unless you further believe from the evidence that, at the time decedent remained in the caboose, an emergency existed and the decedent made choice of means used and in making said choice, used what appeared to him, under the circumstances surrounding him at said time, to be the safest , means of escape and exercised*679 ordinary care in making said choice, then the plaintiff would he entitled to recover, even though his choice was not the best and amounted to negligence and carelessness as set out hereinbefore.”
It is argued that this part of the instruction is erroneous in that it does not require the emergency under which decedent was excused from contributory negligence to have been brought about or produced by the negligence of the defendants in any manner whatever. It must be remembered, however, that in the case under consideration the only emergency that existed was created by the defendants. One of its trains was approaching another train from the rear. A collision was inevitable. The failure, therefore, to define the emergency as one created by the negligence of the defendants could not have been prejudicial.
Lastly, it is insisted that the verdict of $12,500 is excessive. The evidence shows that decedent was about 25 years of age, and had an expectancy of about 32 years. It further appears that he was able to make, when he was at work, from a dollar to a dollar and a half a day. "While the verdict is large, we cannot say that it is in excess of decedent’s earning power. We cannot assume that a young man’s earning power will always remain the same. Calculations, therefore, based on his earning capacity at the time of his death are by no means, conclusive. His earning capacity may increase, and frequently does. The test is: What sum will compensate his estate for the destruction of his- power to earn money? In each case this is a question for the jury, with the settled policy on the part of the court not-to interfere with its verdict unless the sum be so large as to strike us at first blush as being the result of prejudice or passion. Applying this rule in this case, we cannot say that a verdict of $12,500 is excessive.
Judgment affirmed.