94 Ky. 169 | Ky. Ct. App. | 1893
delivered the opinion of the court.
James Greer, as plaintiff in tlie lower court, brought this action against the Louisville and Nashville Railroad Company for negligently driving its car or cars upon and over his leg, crushing it in such manner as to cause its necessary amputation, and alleging that by reason of the defendant’s negligence, plaintiff lost his left leg, and endured great mental and physical suffering, &c., to his damage in the sum of twenty-five thousand dollars. He recovered the sum of two thousand five hundred dollars. Thereupon the defendant prosecuted an appeal to the Superior Court and the plaintiff prosecuted one to this court-. On plaintiff’s
At the Lebanon switch-yard, on the line of defendant’s road, it became necessary to place two gondola cars on one of the side tracks and some box-cars on another. There was some haste required, as the conductor’s purpose was to keep from being held there by the next train going south. So Greer was directed by the conductor, when asked if he wanted the cars, placed back against the “dead” cars, “to just drop them in clear of the main track,” as he was in a. hurry. “Dropping them back” meant “to cut them loose whilst moving, so that the loose cars would roll back to their place by the dead ones.” The conductor then signaled the engineer to back in, and it appears left, going south several car lengths toward the depot, and when the accident happened was engaged in chalking some cars to indicate their destination. The plaintiff went in to uncouple or cut loose the two cars in obedience to the instructions as he understood them, not knowing but that the conductor was near at hand to protect him. He found the pin crooked so that he could not pull it out, and walked with one foot on the outside and the other on the inside of the track for some fifteen or twenty feet, when, as affording him more strength .for extricating the pin, he brought both feet within the rails of the track, and after taking a step or two his foot caught on the end of the guard-rail, or, as testified to by him, “a splinter on the guard-rail at the frog of the switch stuck into the toe of his shoe.” With his right
In this connection it may be observed that the company introduced an order or certificate of its master mechanic, of date December 11, 1890, to the effect that Martin was declared competent, and was authorized to handle an engine as per rule 207, which made it “the duty of an engineer to handle his engine at all times, but a fireman may do so at a station in the immediate presence of the engine-man, provided the master mechanic has declared him competent.”
This declaration of competency was some six weeks after Martin had been left in charge of this engine, in violation, it appears, of rule 207.
On the trial much prominence was given to the testimony of various witnesses as to the condition of the guard rail, the crooked pin and the injured condition of plaintiff’s arm. This testimony was objected to by the defendant, and we think the objection should have been sustained. These circumstances, if regarded as a mere matter of detail, or as incidents of the transaction, might not have been objectionable, as it is hardly possible to detail the occurrence without stating all the conditions and surroundings as they existed at the time. But witnesses were introduced solely on these matters, and for the express purpose of making them the basis of a claim for damages. This was not proper under the pleadings. ' The unsafe or defective condition of the track, or of any portion of the train’s make up, or the sprained condition of plaintiff’s arm, was not the subject matter of inquiry. These defects were not alleged as grounds of complaint or as matters of neg
In the case of Cincinnati, &c., R. Co. v. Barker (94 Ky., 71), decided at this term, where the subject matter of the negligence charged was the setting fire to a depot, it was held that the construction and-
It is insisted by the company that it was error to its prejudice to permit the witness, Blandíord, a life insurance agent, to read as evidence to the jury the American Life Table, showing the expectancy of a man of plaintiff’s age. On this there appears to be no direct authority or precedent in this State. The ■cases in which such testimony has been offered and ¡approved have been those in which loss of life bas occurred.
In Thompson’s Carriers of Passengers, 565, it is said: '“It is also competent for the plaintiff to show that the injuries complained of are permanent in their nature; that he will probably not recover from their •effects; and when there is such testimony, it is not improper to introduce in evidence standard life tables to show the expectancy of life of one of the age of the injured ’party as a basis upon which to estimate the amount of damages he should recover.”
1 It is said ‘ ‘ that in actions for personal injuries oc■basioned by the negligence of the defendant, on the ■question of damages, it is not only proper but important for the plaintiff to show, by the evidence, his previous physical condition and ability to labor or follow his usual’avocation, as well as his condition since the injury, to enable the jury to properly find the pe
But in No. 1, given by the court over the defendant’s objection, they are told that if the preponderance of the evidence shows that the defendant’s employes in operating their train, or failing to control its movements properly, were guilty of ordinary, gross or willful neglect, by which plaintiff was injured, &c., the law was for the plaintiff.
This instruction is erroneous in two respects. The employes must have been those who were superior to plaintiff in point of authority and control, and the negligence must have been gross.
In the leading case of ■ Louisville and Nashville R. R. Co. v. Collins, 2 Duv., 114, and which has been followed invariably since in this court, Judge Robertson said: £ £ It ” —the company — £ £ is therefore responsible for the negligence or unskillfulness of its engineer as its controlling agent in the management of its locomotives and running cars, and that responsibility is graduated by the classes of persons injured by the engineer’s neglect or want of skill — as to strangers, ordinary negligence is sufficient — as to subordinate employes associated with the engineer in conducting the cars, the negligence must be gross — but as to employes in a different department of service, unconnected with, the running operations, ordinary negligence, may be sufficient;” and it may be here added
At the defendant’s instance, and-over the plaintiff’s objection, the jury, by instruction “A,” were told that if the risk and danger of going between the cars was apparent, open and visible to plaintiff when he went in to do the uncoupling of the cars, the jury should find for the defendant. This is misleading and erroneous. The brakeman may, indeed must, take the ordinary risk of going between cars when in motion, as the practice is shown to exist by common acquiesence, if not at the express direction of the companies, and such risk is necessarily open and visible; but it by no means follows that the conductor and engineer may desert him in his hour of peril, and the company be relieved of .the consequences of the gross negligence of these officials, if guilty of such negligence, although the danger and risk imposed on the inferior employe be open and visible.
The errors considered on the two appeals appearing to have been to the prejudice of both plaintiff and defendant, this seems to be a proper case for a division of the costs of the appeals, and such may be made. •
Let the judgment be reversed, and cause remanded with directions to proceed as herein indicated.