133 Ky. 138 | Ky. Ct. App. | 1905
Opinion of the Court by
Affirming.
In September, 1903, tlie appellee, Owen Curd, filed bis petition against appellant and the trustees of the Cincinnati Southern Eailway Company, and against Eli J. Shipp, conductor, and William- Crissman, engineer, on a freight train, for damages for personal injuries, alleging joint gross negligence of the defendants. Previous to the filing of this suit the appellee bad filed a suit for the same cause - of action in almost the same words, making the same parties defendants with the exception of Shipp. To this first petition the appellant and its codefendants, trustees of the Cincinnati Southern Eailway, filed a petition for removal to the Federal court as nonresident defendants, executing bond with sufficient surety, ap
The appellant relied upon many grounds for a new trial in the court below, but insists upon the following grounds only for a reversal in this court: First, that by the laws of Tennessee Shipp and Crissman, whose negligence it is contended caused the accident, were the feliow servants of the appellee, Owen Curd, and that the appellant was not responsible to the appellee for the acts of the fellow servants; second, that under the proof the appellant was entitled to a peremptory instruction ,the negligent act charged and
Appellant’s contention.is that appellee’s injuries wrere received by reason of the wrongful acts and negligence of the crew in charge of the freight train, and that every member of that crew, including the conductor, was the fellow servant of the appellee, and for that reason the company, the master, is not responsible in damages, and that, when appellee undertook to serve the appellant as employe, he assumed all such risks. To substantiate this claim, the appellant took, the deposition of two eminent lawyers of the State of Tennessee and put to each of them a hypothetical question. In answer to this, they each stated in substance that they were clearly of the opinion that the appellee and the other members of his own crew, and those of the freight crew, were all fellow servants, and that the appellant was not responsible to the appellee for his injuries. They both, however, stated that the courts of Tennessee had made some exceptions to the common-law rule. On the cross-examination some of these exceptions
Appellee introduced' as evidence a rule taken from one of appellant’s books of rules givén to those of its employes in charge óf trains: This'rule is as follows :' a Should lain 'accident' odour involving the loss of life, serious injury of person, damage to prop
It is contended by counsel for appellant that the conductor did not know of this heavy iron being thrown upon the track, the breaking of the flat car, and the derailing of the loaded car in his train. It is true the conductor testified that • he thought the collision was a very light one, and that he did not know of any of these things, and that the collision was so light that he had no reason to suspect such results. But little credence can be given this statement, when the results of the collision are considered.
As to the second proposition of appellant, we do not see how the negligent act' charged and the resulting injury were to© remote to hold appellant liable. The negligent act of the conductor, when acting as the vice principal, was the direct cause of his injury.
As to the third proposition, we are of the opinion, from the facts as they appear in this record, that the appellee never had. any action pending in the United States court. The dower court refused to remove the cause to that court. Having the record copied and filing same with the clerk of the United States Court was appellant’s own act, and not the act of the appellee in any sense, and he never undertook to prosecute the action in the United States Court, nor did he become a party thereto. His action remained in the State court.
The appellant complains that the court admitted improper and incompetent testimony in admitting the rule hereinbefore, copied as evidence. It does not present any authority showing that it was incompetent, and we are of the opinion that it was competent. This court has in many cases so decided.
The fifth, and last, ground is that the verdict is excessive. The proof shows that appellee was uncon
The instructions given by the coiirt were not objected or excepted to1 by either party, and in fact there is no serious complaint made of them. The court properly refused the instructions offered by the appellant, as all that was proper in them was embodied in the instructions given.
For these reasons, the judgment of the lower court is affirmed.