177 Ky. 88 | Ky. Ct. App. | 1917
Opinion op the Court by
— Reversing.
Henry Perkins, while employed by the railway company in placing ties on a flat car as they were handed to him and his co-laborer by other employes standing on the ground, was injured when one or more ties rolled or fell from the top of the pile as they were being loaded. The accident happened on May 8, 1913, and he died on
On a trial of the case, which was brought under the Federal Employers’ Liability Act, there was a judgment for the administrator, and on this appeal by the railway company the chief ground urged for reversal is that the jury should have been instructed to find a verdict for it upon the ground that there was no evidence showing that the death of Henry Perkins was due to the injuries he received while loading cross-ties.
There is no dispute in the evidence that Perkins, at the time the injuries were received, was about 18 years old, and was a stout, healthy, vigorous young fellow weighing about 156 pounds, free from any symptoms of tuberculosis or other disease; nor is there any dispute that the direct cause of his death was tuberculosis of the lungs, or, as it is commonly called, consumption.
As the suit was brought to recover damages for his death, it necessarily follows that before a recovery could be had by his administrator there must have been sufficient evidence to show that his death was caused by the injuries received, and being of the opinion that the evidence wholly fails to show any connection between the injury and the cause of his death, we will set out quite fully the evidence upon this issue as it appears in the record. •
As before stated, it is shown that Henry Perkins at the time he was injured was young, healthy and strong, having no appearance of disease, nor is there any evidence tending to show that the disease from which he died was hereditary.
What happened immediately after he was injured is disclosed in the following evidence:
Prince Perkins said that when he saw him immediately after the accident he was sitting down by the side of the car holding his leg, looking like he was trying to “ward off misery”; that he never heard him complain of his side being hurt.
Ben Worley saw him when he either jumped or was thrown from the car when the tie struck him, and said that he sat down by the sitie of the track, holding his
■ Lige Worley said that he saw him about the time and after he, struck the ground, and that he was complaining about his ankle and foot and was holding his ankle; that he never heard him complain about anything except his ankle.
S. A. Worley helped to carry him home and said he was complaining of his ankle and that after he got to tho house he spoke about his side being hurt, and that the witness opened his shirt and looked at his side, but he was not asked, nor did he say, what he discovered or whether his side gave any appearance of being hurt.
His father, Sol Perkins, testified that when he was brought home he was hurt in his side and ankle; that after he was injured he was never well any more and was unable to do any work and gradually lost in weight; that he complained of his side and ankle hurting him; that his ankle was swollen a great deal.
It will be observed that although one or more witnesses testified as to the injury to his ankle and its appearance, no one of them saw any injury on his side. All that they say is that he complained of his side.
Dr. Uodbey saw him soon after the accident, and he testifies that “I found a mashed ankle and bruised. I used some antiseptic and then' applied á bandage. I think I was at his home once or twice — two or three times. He did not complain of any other injury to or on his body, and I did not treat him for any other injury. I went to see him two or three times at his home and I would meet up with him at the depot and about town and ask him how he was getting along. Pie recovered from the injury to his ankle so far as I know, and after he had recovered he told me he was ready to report back to work if I would give him a statement. That was several weeks after he was hurt. He was longer recovering than I thought he would be; I don’t know how long he went on crutches — several 'days — and then I think he walked with a cane some. I didn’t treat him for anything except his bruised ankle and don’t know of any other person treating him at the same time that I was. I examined his ankle on the day he was hurt and again after-wards, and it was swollen. Q. Assuming it to be true that that swelling continued on up to the time he died,
Dr. Gambling treated him two or three months previous to his death at his office, to which he came three or four times. He said that he was then in a very poor state of health, suffering from pulmonary tuberculosis, or consumption of the lungs; that he evidently had had this consumption for two months or more. “I could not tell how long it had been in the system, but he was in the second stage of tuberculosis when I treated him. I never heard him complain of anything else. Q. Doctor, you know what caused that tuberculosis of the lung in his ease. A. No, sir; well, no. Q. In his case you do not know what caused it? A. No more than I do in any other case. Q. How many kinds of tuberculosis can a body be infected with before it takes the life? A. You may have it in the lungs after the bacillus tissue in there,-. Q. But how many kinds of tuberculosis can you have and in what parts of the body, without it touching your lungs? A. There is but one tuberculosis bacillus, and they may attack the body anywhere. Q. Can you have tuberculosis of the bone? A. Yes, sir. Q. Is tuberculosis a germ that it floating around in the air on the outside that gets into the body and develops into what you call tuberculosis? A. It is. Q. He first'had a germ in his lung and it developed in the body? A. Tuberculosis is a little germ; it is one of the million germs we have. If you were to get about 250 of these little germs in a wad you could drop them through the eye of an ordinary needle. Q. I am talking about what you say this germ is? A. Yes, sir. Q. And what I want to ask you is, it develops after it gets into the body? A. Yes, after it gets into the body. Q. Does it float around in the air? A. Yes, sir. Q. Can it get into the lungs? A. Yes, sir. Q. If there is a crushed bone and ankle, can
Dr. Owens said that Henry Perkins came to see him in the fall and winter of 1913 and consulted him about
Dr. Cain said he saw him three or four times in February, 1914, and found him suffering from consumption.
It will be readily seen from this evidence, which is all there is in the record on the subject, that if we should assume, as we do assume for the purposes of this decision, that the injury received by Perkins was caused by the negligence of the company, the evidence wholly fails to show, directly or by fair or reasonable inference, that his death from consumption was the result of this injury. And in .this connection it should not be overlooked that the evidence that he suffered any injury on his side was very unsatisfactory. It consists entirely of statements made by Perkins at the time he fell from the car that his side hurt him and some similar declarations made thereafter to his father; but no person saw any injury on his side, nor did he mention to any of the doctors who treated him that his side had been injured in any way, except that he did say to one doctor shortly before his death, and when he was in the last stages of consumption, that his side hurt him. But none of the medical witnesses were able to say that the injury to his ankle produced the consumption from which he died or that his death was caused by the injuries received.
The law applicable to this case, as has been held in many eases with uniformity and consistency, is that there can be no recovery for negligence unless the injury complained of was the proximate result of the negligence, or, as applicable to the facts of this case, that the death of Perkins must have resulted from the injury he received. Thus it was said in Conway v. Louisville & Nashville R. R. Co., 135 Ky. 229:
“There is also a plain elementary principle of negligence law that to constitute actionable negligence there*95 must be a concurrence of two things: First, negligence; and, second, injury resulting as a proximate cause of it. It matters not how negligent a person may be, his negligence, unless the injuries complained of were the proximate result of it, will not authorize a recovery in damages.” To the same effect are C., N. O. & T. P. Ry. Co. v. Zachary, 32 Ky. L. R. 678; Cooke Jellico Coal Co. v. Richardson, 156 Ky. 617.
In Stuart’s Admr. v. N., C. & St. L. Ry. Co., 146 Ky. 127, the court said:
“Where it is sought to recover damages for negligence or wrongful act, there must be some evidence to ■show that the deceased lost his life through the negligence of the defendant, and this evidence must be sufficient to charge the defendant with a breach of duty. A recovery cannot be had on mere surmises or speculation as to how the injury that is complained of happened, nor will it be presumed that the defendant was guilty of actionable negligence. If the injury may as reasonably be attributed to a cause that will excuse the' defendant as to a cause that will subject it to liability, then the well-settled rule is that a recovery cannot he had.” To the same effect are Hurt v. L. & N. R. R. Co., 116 Ky. 545; Early v. L., H. & St. L. Ry. Co., 115 Ky. 13.
In Hughes v. Cincinnati, etc., R. Co., 91 Ky. 526, the court, in speaking of the cause that produced the death of Hughes, said: “We are left to theorize as to it. One suing to recover damages for injury arising from another’s neglect must offer some testimony conducing to show that it was so occasioned. Negligence cannot be presumed in a case like this one. The presumption is the other way. IP cannot be found without evidence. The complaining party must not only show the injury, but also some evidence tending to show that the other party is to blame for it. Mere proof of the injury, with attending circumstances showing that the party charged with neglect may be blameless, or may be at fault, will not do. In such a case, there is no evidence tending to show that the injury was due to neglect. Circumstances are merely presented upon which one may theorize as to the cause of the accident. The burden of showing neglect rests upon the complainant, and under such circumstances he has offered no evidence tending to show it. He has merely presented two or more states of ease upon which one may theorize as to the cause of the accident.”
“We shall assume for the purposes of this case that the evidence as to the character of the jerk was sufficient to take the case to the jury. This is not all, however, that plaintiff was required to establish. It was necessary not only to show negligence, but negligence that was the proximate cause of decedent’s death. It was, therefore, necessary for plaintiff to prove that the jerk or jerks testified to by the witnesses caused the decedent to fall or be thrown from the train. None of the witnesses was able to say that decedent fell or was thrown from the train at the time the jerks occurred. They testified that the jerks occurred just before the train reached Worthville. Exactly at what point is left in doubt. These jerks occurred some time after crossing the bridge, and before the train stopped. For aught that appears in the testimony, it may have been due to the fact that the steam was shut off just after crossing the bridge. As this was more than half a mile from the station, it is certain that these jerks did not cause decedent to fall from the train. On the 'other hand, if the jerks took place just as the train was being stopped at the station, it is equally true that they did not cause the injury. It will be seen, therefore, that the cause of the injury, so far as affected by the evidence of plaintiff, is a matter of speculation or conjecture. There was a failure to establish any causal connection between the injury and the jerk. All that the jury could do was to guess at the cause of the accident. Even if we eliminate from our consideration the evidence of the conductor, it is just as probable under the evidence that the decedent jumped from the train before it reached the station as it is that he was thrown from the train by reason of a jerk. Where there is a failure to show that the negligence relied on was the proximate cause of the injury, defendant’s liability cannot be made a matter of mere guesswork. In such a case there is nothing to submit to the jury.”
Under the facts of this case, when considered in the light of the law applicable, it is perfectly plain that it would be the purest kind of guesswork to.say that the
Wherefore, the judgment is reversed, with directions for a new trial, and if there be a new trial, and the evidence is substantially the same as appears in this record, the court will take the case from the jury.