194 Ky. 379 | Ky. Ct. App. | 1922
Opinion op the Court by
Reversing.
The appellee and plaintiff below, Mack "Walls, was a man about forty years of age at the time he testified and for more than twenty years had worked for the Cincinnati, New Orleans and Texas Pacific Railway Company as a section hand, but on the 12th day of June, 1919, at the time he sustained the injuries for which he sues, the railroad was operated by Walker D. Plines, Director General of Railroads, the Federal government having taken charge of it under the Federal Control Act. At about 7 o’clock p. m. on the day mentioned plaintiff and his crew were called to remove and clear up. a wreck which had occurred about 2 miles south of McKinney, in Lincoln county, and they finished their work about 12 o’clock that night, and the crew of five or six hands, including plaintiff, had started on their return to McKinney when John Bell, one of the section hands who was standing oii the front end of the handcar, after they had gotten about four hundred yards from the wreck fell or jumped from the car in front of it when it ran over him and was derailed, causing- plaintiff to be thrown from it and he sustained a dislocation of his- right elbow. There was no fracture of any of the bones, but for some reason the dislocation was not reduced, which caused the bones to be knitted together, the one beside the other, resulting in a stiff joint. There was also some injury to the wrist joint but not so serious as the one to the elbow.
Plaintiff filed this action against the railroad company and the Director General alleging that they were negligent in permitting the car to be overcrowded and that their servant, John Bell, was guilty of negligence because of which he fell in front of the ear resulting in its derailment and the consequent injury to plaintiff, and he sought a judgment for $25,000.00. Separate answers of defendants denied all alleged negligence and contained pleas of contributory negligence and assumed risk. The answer of the railroad company contained the additional plea that it was not operating the railroad at the time but that it was being operated by the Federal government
In his testimony, as well as in the instructions which he offered and which the court gave to the jury, plaintiff abandoned the alleged negligence of the overcrowded condition of the car and planted his right to recover solely upon the ground of the alleged negligence of his fellow servant, John Bell, and unless the testimony is sufficient to sustain that ground or to uphold the verdict of the jury finding it to be true, there was a failure of proof and the motion for a directed verdict in favor of defendant (appellant) should have been sustained. No one testified for plaintiff as to the actions and conduct of Bell at the time of and just preceding the happening of the accident but himself, and his testimony on that point was, that it was a moonlight night and the car on which he was riding started from the wreck about 12 o ’clock, there being another one some thirty or fifty yards in front of it, and there were on his car some six or seven hands, some of whom were standing at the rear end working the lever and others at the front end engaged in the same work; that a short distance from where they started the track was down grade and the car moved by its own momentum without the necessity of working the levers, and that when it started down grade Bell, being on the front end of the ear with his back in the direction it was going, turned loose of the lever he was working and was looking around over the landscape and moving his body and his feet to some extent when he either jumped or fell from the car; that the place where he fell was between
Under this evidence, which is all there is upon the subject, it is seriously doubted whether the conduct of Bell, as portrayed by plaintiff, was sufficient to create negligence on his part. The only blamable conduct attributed to him by plaintiff was that he looked either to the east or to the west towards the knobs; that he did not stand sphinx-like and motionless on the car, and that he failed to brace himself by holding to some part of it.
But, waiving that point, and conceding for the purposes of this opinion only that the evidence was sufficient to authorize a finding by the jury that Bell was negligent in his actions and conduct as described by plaintiff, it, notwithstanding, was the duty of the court to sustain defendant’s motion for a directed verdict in its favor under the testimony heard upon the trial. It is a firmly settled rule in this jurisdiction and elsewhere that one seeking to recover for negligence must prove it, and that the damages he seeks were the proximate result of that negligence. If the testimony in the case shows that the injury and consequent damages may have been produced by one of two or more causes for only one or more of which defendant was responsible the cause of action fails and no recovery will be allowed. The most recent case from this court applying, that doctrine is the Campbell case, supra, and in the opinion many other cases from this and other courts are cited.
It having been proven in tbe case that Bell produced tbe derailment of tbe car either through his negligence causing him to fall in front of it (accepting plaintiff’s theory as true), or by his voluntary act in jumping in front of it and if the latter the defendant would not be liable under the doctrine, supra, the peremptory instruction should have been given, and the court erred in declining to do so. Other questions not herein discussed are left open as is also the question of the negligence of Bell, which we have assumed only for the purposes of this opinion.
Wherefore the judgment is reversed with directions to sustain the motion for a new trial and for proceedings consistent herewith.