113 Ky. 161 | Ky. Ct. App. | 1902
Opinion of the coltet by
Reversing.
This action was filed on February 23, 3901, by appellee to recover for the death of his intestate, against the Cincinnati, New Orleans & Texas Pacific Railway Company and Fred Milligan, who was an engineer in its service. It was charged in the petition that the death of the intestate was due to the negligence of Milligan, as engineer in the service of the railroad company, in moving a train under his charge.
It is also earnestly insisted that there was no testimony showing negligence on the part of the engineer, Milligan, and that a peremptory instruction should have boon given., The evidence on behalf of the appellee tended to establish these facts: The engineer, fireman and two brakeman were .engaged in transferring ears from the main line to the side track in the yards of the company in Burgin, Kv., the inféstalo being one of the1 brakemon. The purpose was to leave a car on the side track. To do this, the engineer w7as required to back the cars in on the side track, there being a number of cars between the engine and the car intended to be left. The cars were provided with automatic couplers, which were operated by a bar extending out from the coup
The court properly instructed the jury that they might allow compensatory damages if there was ordinary negligence, and punitive1 damages if there was gross negligence. This is in accord with the provisions of the statute. Kentucky Statutes, section (5. Where death does not result, there can be a recovery by one in the service of the company for only the gross negligence of his superior who was engaged with him in the same service. Railroad Co. v. Coleman (22 R., 878) (59 S. W., 13). But where death results, and the action is under the statute, it controls, and there may be a recovery for ordinary negligence of the superior servants engaged in the same employment. Linck’s Adm'r v. Railroad Co. (21 R., 1097) (54 S. W., 184). The plaintiff, having alleged the higher degree of negligence, might recover, if he established negligence, without showing that it was gross; for this would be only a failure to prove1 a part of his allegation.
The court allowed the i>laintif£ to prove before the "jury a statement made by Milligan several hours after the injury to the effect that Cook did not go in on his side, but on the fireman’s side; that Sinkhorn, the other brakeman, was on. the opposite side, giving him the signals; that the fireman said Cook was hurt, and he got down and went to him. After he got down, Sinkhorn was still signaling him on down the track. He asked Cook how he was hurt. Cook said: “Milligan, you have caught me.. I am dying.” The court, in admitting the evidence, instructed the jury as follows-: “Gentlemen of the jury, this testimony is not competent as to the C., N. O. & T. P. Ry. Co. It is only com-
The court gave the jury this instruction: “If you believe from the evidence in this case that the deceased, Ed Cook, was between the cars, and enaged in the act of uncoupling them; that the engineer in charge of the train knew, or had reasonable ground to know, at the time that Cook was in that position and thus engaged; that while Cook was in that position and thus engaged said engineer received a signal to move the cars from an employe who was forbidden by the rules of the company to give such signal to the engineer under the circumstances then existing; that the engineer acted upon that signal, and moved the cars while Cook was in that position, engaged in uncoupling, thus injuring him so that he died, — then moving the train at that particular time was an act of negligence on the part of the engineer with reference to the persona! safety of Cook, and you will find for the plaintiff compensatory damages against both defendants. The evidence for your consideration in fixing the amount of compensatiqn embraces the testimony as to Cook’s money-earning capacity at or about the time of his death, the state of his health, and his expectancy of life. If you believe from the evidence that rhe negligence of the engineer was gross, you may, in your discretion, find, in addition to compensation, punitive damages, by which is meant such damages as are imposed as a
On another trial the court will allow the defendants to read to the jury the rule under the heading, “Avoid Other
There are a number of minor matters relied on for reversal, but on the whole record we are unable to see that there was any substantial error in any of these things. ,
Judgment reversed, and cause remanded for k new trial.