171 Ky. 11 | Ky. Ct. App. | 1916
Opinion of the Court by
Reversing.
This action was instituted by the- appellee, the administrator of George Jones, deceased, against the appellant, Cincinnati, New Orleans and Texas Pacific Railway Company, to recover of appellant damages for al
The appellee alleged that the death of Jones arose from the negligence of other employees of appellant, while the appellant denied any negligence upon its part and relied upon the alleged contributory negligence of Jones in diminution of damages, and, also, plead that the negligence of Jones was the sole and only cause of his death and that his death was not caused in whole or in part by any negligent act upon its part. At the- close of the evidence- offered by appellee- and at the close of all the evidence, the appellant moved the court to peremptorily direct a verdict in its behalf, but these motions were overruled by the court. The appellant offered two instructions, which were refused. The- appellee moved the court to peremptorily instruct the jury to return a verdict for him, and offered instructions, one of which directed the jury to find a verdict for him. The court refused the instructions offered by appellee, and then upon its own motion and over the- objection of appellant, gave to the jury five instructions. By the first of these, the jury was peremptorily directed to find a verdict for appellee, and contained directions as to the measure of damages. The second instruction related to the duty of the jury as to apportioning the- damages found between the widow and dependent children of Jones. The third instruction related to the duty of. the jury if it found that Jones was guilty of any negligence, which contributed to his death. The fourth instruction defined negligence-, as used in the- instructions. The fifth instruction directed the jury, that as many as nine of its members concurring, it -could find a verdict, and the form of the verdict, if all the jury should agree, and its form, if less than the whole number, but as many as nine of the members, should agree-.
The- jury returned a verdict for appellee, and the court rendered a judgment in conformity therewith. The appellant seeks a reversal upon the following grounds,
(2) The court refused to give an instruction, which was offered by it, basing a defense upon the decedent having assumed the risk of doing the acts, in which, he was engaged, at the time he was struck by the train.
(3) The court decided as a matter of law, that the proven negligence of appellant, in whole or in part, caused the death of decedent, and peremptorily instructed the jury to return a verdict for appellee.-
(4) The court erred in defining the measure of damages.
(5) The instruction upon contributory negligence was erroneous and prejudicial.
The facts and circumstances, which resulted in the death of decedent, appear to be as follows:
Gf. T. Ilicks was the foreman of a gang of men, of whom deceased was one, and who were engaged in the work of repairing the tracks of appellant’s railroad where it passes through Kenton county. The particular work in which they were -engaged was that of £ ‘ spacing ties, ’ ’ and to enable them to elevate the rails when necessary, two appliances which were called “jacks,” were in use. The “jacks” were made of iron and were about eighteen inches in height and weighed from fifty to seventy-five pounds, and a part of it consisted of a lever about five or six feet in length, which worked in notches. The- “jack’ ’ was placed against the rail, and by the mechanism of the lever, the rail was elevated to the point desired. In the progress of their work upon the occasion of decedent’s, injuries, the “jacks” were placed against the rails upon, each side of the track and the rails elevated about three; inches. At the point where the “jacks” were situated,, upon the east side of the track, an embankment arises, which is from fifteen to forty feet in height, according to the opinions of the different witnesses. Between the ends of the crossties, upon the -east side of the track and the embankment, there was a shallow ditch, about eighteen inches in depth and variously estimated in width. Between the ends of the ties, upon the east side of the track, and the foot of the embankmant, the distance is stated by the various witnesses to be from two and one-half feet to eight feet. On the west side of the- track, upon which they were at work, was another track. The one upon which the repairs were being made with the track over
(a) The appellant insists that the instruction asked, for by it, which peremptorily directed the jury to find' a verdict for it, ought to have been given, because, as it insists, there was no negligence proven, of which it was: guilty, which resulted in Jones ’ death. It may be conceded that it is a well established rule of the law of negligence, that before a recovery can be had for an injury suffered, it must be proven that the injury was caused by proven negligence of the person who is charged with the negligence. The contention that there is a failure of proof of any negligence on the part of appellant, which in whole .or in part caused the injury to decedent, is based upon the theory that Jones was a section hand, whose duty it was to watch for the trains upon the road, and keep out of their way, and to keep the track clear of obstacles, which might interfere with the safe passage of the trains. It is true, ordinarily, that the employees of a railroad,
It is, further contended that, however negligent the appellant was in the operation of the train at an excessive speed after having received the warning, that such negligence was not the proximate cause, in whole or in part of the death of decedent, and for that reason that the direct verdict sought by appellant should have been ordered. It is contended that decedent was in a place of safety when the train came in sight; that he knew of the approach of the train, and that when he left Ms place of safety and went to the place of the “jack” and attempted its removal, that he did that wMch a prudent person would not do under the circumstances, and hence assumed the risk of all the danger which attended his action, and that he thereby placed himself in a position of peril through his own fault and not through any negligence of appellant, and that when directed to get out of the way and to let the train knock the “jack” away, that, fully knowing and appreciating the danger of attempting to cross the track in front of the engine, that instead of stepping, one step to the eastward to a place of safety, he voluntarily chose to take the chance of attempting to cross the track to the west side, and thus assumed all the risks of the dangers of so doing, and hence his death re- ' suited from Ms own negligence, alone, without any co
The- rule, however, is elementary, that in the trial of ordinary actions, the issues of fact are for determination, under proper instructions, by the jury, and although the court should be of the opinion that the evidence greatly preponderates for or against the contention of a party; if there is evidence of fact, which supports a contention, or if the facts are undisputed, but are such that reasonable men will draw different conclusions from them, the issue should be submitted to the jury.
The second instruction given the jury upon the trial, and which was objected to is substantially the same as was given‘by the trial court in the case of C. & O. Ry. Co. v. Addie Kelley, Admx., and was approved by this court, in an opinion found in 160 Ky. 296, and 161 Ky. 655, but upon appeal to the Supreme Court of the United States, in an opinion rendered in that case on June 5th, 1916, it reversed the judgment and remanded the cause, because of its holding that the instruction was erroneous. Reference is made to that opinion of the Supreme Court for the proper instruction to be given upon another trial, instead of the one condemned.
Instruction No. 3, which relates to the- subject of contributory negligence, does not conform to what was adjudged to be the proper instruction upon contributory negligence in the action under the Federal Employers’ Liability Act by the Supreme Court of the United States, in the case of N. & W. R. R. Co. v. Ernest, 229 U. S. 107; and the case of N. C. & St. Louis Ry. v. Henry, 158 Ky. 88, by this court.
Upon another trial, the instruction upon contributory negligence- should be made- to conform to the instruction approved in the cases, supra.
The judgment is reversed and the cause remanded for proceedings consistent with this opinion.