82 Ky. 610 | Ky. Ct. App. | 1885
DELIVERED TIIE OPINION OF THE COURT.
Appellant states in Ms petition that his intestate was, at the time of his death, employed in the service of appellee ás a brakeman on its railroad train, composed of baggage, passenger and freight-cars, and while
The first paragraph of the answer contains simply a traverse of the material allegations of the petition. But in the second it is stated that the deceased negligently placed his body outside the car on which he was riding just before it entered the bridge mentioned, the location of.which he well knew, whereby it came in contact with the bridge, and he was knocked from the train, and his head and shoulders injured so that he died therefrom; and that his death was wholly caused by his own neglect.'
A general demurrer to the second paragraph was filed, and a motion made also to strike it from the answer; but both were .overruled, and this action of the court is made ground for reversal.
Under the Civil Code, section 113, an answer may contain as many matters of estoppel and of avoidance, legal or equitable, total or partial; and may make as many traverses as there may be grounds for in behalf of the pleader. And if there be more than one, each must be stated in a separate, numbered paragraph.
In the second paragraph of the answer is stated the manner in which the deceased lost his life, which is essentially different from that described in the petition, and that the injury was caused wholly by his own neglect. And if the matter thus relied on is
Though it has been repeatedly held by this court, and may be considered settled, that contributory neglect on the part of the deceased will not relieve a party from responsibility under section 3, chapter 57, General Statutes, by whose willful neglect his life-has been destroyed, nevertheless if it be true, as stated in the second paragraph of the answer, that the injury received by the deceased was caused wholly by his own negligence, it necessarily results that his life was not lost or destroyed by the willful neglect of appellee or its agents and servants, and this action can not be maintained. But whether the circumstances under which the injury was received, as stated in the-answer, are sufficient to relieve appellee from legal responsibility, of course depends upon the facts of' the, whole case. And this brings us to the consideration of the next error assigned, which is on account of the action of the court in giving, at the close-of the evidence offered by appellant, a peremptory instruction to the jury to find for appellee.
The train on which the deceased was employed when it left Anchorage station was composed of fourteen or fifteen freight-cars, and a passenger and baggage car, the two latter being at the rear end. But when it reached Scott’s station, for some reason not explained, the position of the cars was so changed that eight or nine of the freight-cars were put in front, and five or six of them in rear of the passenger and baggage cars. And this change made it necessary for the deceased,,
The only witness who saw the deceased at the time he received the injury from which he died was a fellow-brakeman, whose position was on top of one of the freight-cars nearer the engine than the baggage car, and who was at the time looking towards the rear end of the train in order to discover and give warning of it in case the rear cars became uncoupled. He testified that he saw the deceased either at the door or on the steps at the end of the baggage car when it was a car length or more from the bridge, looking back towards the rear end of the train, his head and part of one shoulder being out, and saw him strike against -the bridge whereby his head and left shoulder were so much injured that he died very soon after.
According to the uncontradicted testimony of that witness, it is manifest that the life of the deceased was • destroyed by his own act, in' placing his body while the train was moving so far beyond the side of the baggage car as to bring it in contact with the bridge, which was about two feet wider than the car.
The evidence shows omissions of duty and violation of necessary and prescribed rules for operating railway trains by those in charge at the time the deceased was killed. But in order to authorize a recovery in this case, not only must willful negligence in the meaning -of the statute on the part of those in charge of the train be shown, but it must appear that such neglect was the proximate cause of the injury to the deceased, or that such injury would, under the circumstances
The evidence establishes the following facts which show negligence on the part of those having control of the train when the deceased was injured. In running what is called a mixed train, it is safer for both passengers and employes that the ■ passenger and baggage cars should be in rear of the freight-cars, yet no satisfactory reason is given for the position the cars occupied when the deceased was injured. One of the rules of the company requires a red flag kept on the hindmost car, to enable the engine man himself to see it in case the rear cars became uncoupled. But it was not done by those in charge of that train, and the duty was consequently imposed on the brakeman to watch the rear cars; and as they had become uncoupled as many as two times before reaching- the bridge, where the deceased was injured, there was a necessity for increased vigilance on their part. It also appears that the train was running at a greater - rate of speed, when it crossed the bridge, than the prescribed rules of the company authorized, and that, although the proper signal was whistled, the bell was not rung as the train approached the bridge.
• It is not necessary to determine whether those in charge of the train were or not guilty of willful neglect, Unless it be made to appear that the injury to-the deceased was either the immediate and direct result of such negligence, or else that the act of the deceased was such as it was the legal duty of those in charge of the train to have foreseen and provided, against.
It is probable that if the position of the cars had not been changed at Scott’s station, the deceased would, when the train crossed the bridge, have been on top of a freight-car, and consequently not injured by placing his body where it would inevitably come in contact with the bridge. But even conceding that those in charge of the train were guilty of negligence in changing the positions of the cars, the injury to the deceased was not the proximate, probable or natural result of the change.
In this case the deceased, with a knowledge of the risks and dangers incident to his employment, and familiar with the peculiar danger of exposing his person at the time and place he did do, himself caused the destruction of his life, and did it in a manner and under circumstances that could not have, with reasonable diligence on the part of those controlling the train, been foreseen and provided against. In our opinion, therefore, it is clear from the evidence that the life of the deceased was not, in legal contemplation, lost or destroyed by the willful neglect of appel
Judgment affirmed.