118 Ky. 145 | Ky. Ct. App. | 1904
Lead Opinion
reversing.
Appellee, Charles McIntosh, was in the service of appellant as a laborer in a section gang working under a foreman named Monroe Ray, who had charge of the; force. On or about November 7, 1901, they were working above Ilsey5 a station on the road. After dinner the foreman ordered the men to put the hand car on the track, saying they had to go to Ilsey. They went down to Boxtown, and there stopped a minute or two while he went into a store. When he came out of the store and got on the car, he directed them to pull out. This they did, and when they had; gone a short distance, as they rounded a curve they saw a freight train approaching them, about 75 or 100 yards off. They all jumped from the car. The foreman ordered the car to be taken off the track. There are four hand holds on the car, for four men to take hold of it. Appellee and three other men took hold of the car, as ordered by the foreman, and quickly got it off the track as the engine came right beside them. The car had on it two or three jacks, twelve or fifteen tamping picks, about the same number of shovels, ■two or three claw bars, two or three, line bars, dinner buckets, and other things. The usual way of moving the hand car from the track was to unload it, and' then take the car off, but on this occasion they had to take the car off with the load on it, to prevent collision with the train, and hardly had time to get it off in that way. They also had to lift it up very hurriedly, and move off with it quickly, to avoid the collision. In doing this appellee, McIntosh, was badly ruptured, and his capacity to labor was seriously impaired. He also suffered pain and lost time while suffering from the injury. The train was on time, 'and the section foreman was running on the time of the train. There
At the conclusion of the plaintiff’s evidence the defendant moved the court to instruct the jury peremptorily to find for it. The court overruled the motion; holding that the sole ground upon which he would submit the issue was as to whether or not “it was negligence for the freight train to approach the public crossing at the same time the section-men did, without giving the statutory warning.” 'The defendant then announced that it was surprised, and was unprepared to meet the case on these views, and moved the court to set aside the swearing of the jury and grant it a continuance, which motion the court overruled. The ground of this motion, as we are informed in the brief, was that, in overruling the demurrer to the petition filed by the defendant, the court had! held the petition good, on the ground of the negligence charged on the part of the section boss, and the defendant had prepared its case only on this ground. But there is nothing in the record! showing that the court had misled the defendant in any way in its ruling on the demurrer at the previous term, and, in the absence of evidence,
At the conclusion of the evidence the court refused the following instruction asked by the plaintiff: “The court instructs the jury that if they believe from the evidence that the section boss, Monroe Ray, by gross negligence ordered the hand car to be run from the place of work, near Boxtown, to Ilsey, without proper precaution to protect his crew from collision with trains, and if they further believe from the evidence that Charles McIntosh was with said crew, and that he was injured in a reasonable efforff to remove said car from the track to prevent a collision with a train, and they further believe from the evidence that said injury was. the natural result of said gross negligence, then the jury will find their verdict for plaintiff. ‘Gross negligence,’ as here used, means the absence of slight care.” He then gave the. following instruction, to which the defendant objected: “The court instructs the jury that if they believe from the evidence that the engine mentioned by the witnesses approached a. public road crossing near where plaintiff claims to have been injured without sounding its whistle or ringing its bell, and that, by reason of a failure of the defendant’s employes in charge of said engine to either ring the bell or blow the whistle while approaching, said crossing, a hand car, and section hands on same, ran into dangerous proximity to the approaching train, which rendered it necessary for plaintiff and others to speedily remove said car from the track, and that plaintiff, in assisting to remove said car from the track, and while exercising ordinary care
It is insisted for appellant that, as to a section hand on a hand car, the failure of the train, to whistle at a public crossing as required by the statute is not negligence; that a section hand assumes the risk incidental to riding on hand cars, including the risk of being overtaken by a train; that' the peril of throwing off the hand car was one of the ordinary risks of the service which was assumed by the plaintiff, and that the hernia suffered by him was not the natural or proximate result of the negligence of the defendant. It is also insisted that the instruction given by the court is not warranted by the allegations of the petition.
Section 786, Kentucky Statutes 1903, requires that each locomotive shall have a bell and whistle, and that outside of incorporated towns the bell shall be rung or whistle sounded for a distance of at least fifty rods from the place where the railroad crosses at grade any public highway, and that the bell shall be rung or whistle sounded continuously until the engine has reached such highway crossing. Section 793 provides a penalty for a violation of the statute, and, by section 466, a person injured by violation of the statute may recover from the offender such damages as he may sustain by reason of the violation, although a penalty for the violation is thereby imposed. In Cahill v. Cincinnati, etc., R. R., 92 Ky., 345, 13 R., 714, 18 S. W., 2, it was held that the failure of a railroad train to give the signal of its approach to a public crossing is negligence, as to one at a private crossing near by, and thus lawfully upon the track. This case has been followed in subsequent cases, and the principle thus decided
A section hand assumes the risks incidental to riding on a hand car where ordinary care is used in its management, but he does not' assume the risk incidental to the gross negligence of the section foreman in running the hand car. It is the duty of the section foreman not to expose his men to risks of collisions with trains, thus imperiling their lives, without exercising proper precautions for their safety. In the case before us he was running on the time of the freight train. He stopped at Boxtown, and, without' taking any precautions for the safety of his men, instead of waiting there for' the train to pas's, went on until he met the train. Such conduct warranted the jury in finding him guilty of gross negligence, and, while the section men assume all risks incidental to ordinary negligence on his part, the company is liable for his gross negligence. L. & N. R. R. v. Collins, 63 Ky., 114, 87 Am. Dec., 486; Illinois Central R. R. v. Coleman, 59 S. W., 13, 22 Ky. Law Rep., 878; Cincinnati, etc., R. R. v. Cook’s Admr., 113 Ky., 162, 67 S. W., 382.
In Long’s Admr. v. Illinois Central Railroad, 68 S. W., 1095, 24 Ky. Law Rep., 567, 58 L. R. A., 237, it was held that where the section foreman ordered his men to proceed with the hand car, and one of them was killed in a collision by reason of his negligence, there could be a recovery, although he knew they were running upon the time of the train. The court said: “The section foreman under whose directions he worked represented the master, and it was Long’s duty to obey his orders in the usual course of business. When he
It remains to determifie whether the allegations of the petition are sufficient to warrant the instruction given by the court as to negligence on the part of the trainmen. In the original petition the plaintiff alleged that his injury was proximately caused by the gross negligence of the defendant’s section boss in the operation of the hand car, and by the gross negligence of the trainmen in the operation of the engine and train approaching them. The defendant entered a motion that he make his petition more specific, and, this being sustained, he filed an amendtaent, alleging, as to the train, that it was at the time being run in a rapid, reckless, negligent and dangerous manner, and without giving proper signals. The defendant filed a general demurrer to the petition, which was overruled, and, without further motion, filed an answer controverting its allegations. On the trial, without objection,
On the return of the case to the circuit court, the plaintiff will be allowed to amend his petition, and on another trial the court, in lieu of the two instructions quoted, will give one instruction as herein indicated.
Judgment reversed, and cause remanded for a new trial and further proceedings consistent herewith.
Rehearing
Response by
to petition for rehearing:
Counsel- seem to misapprehend the opinion. We said: “If the foreman had not run his hand car negligently on the time of tbe train, there would have been no trouble from the faitee to give signals of the approach of the train to the crossing. On the other hand, if these signals had been given, the consequences of his negligence might have, perhaps, been
Petition overruled.