178 Ky. 632 | Ky. Ct. App. | 1918
Opinion op the Court by
Affirming.
By tbis suit tbe appellant, administrator of Allie Kelch., seeks to recover from the appellee, (defendant below) damages accruing to the estate of the deceased because of his death, which is charged to have been produced through the negligence of the defendant. The negligence-relied on was traversed by the answer, which also contained defensive pleas of contributory negligence and assumed risk, both of which were denied by a reply, thus forming the issues.
At the close of plaintiff’s testimony the court sustained defendant’s motion for a peremptory instruction, directing the jury to return a verdict in its favor, which was done, resulting in the judgment dismissing the petition, and to reverse it plaintiff prosecutes this appeal.
The facts and conditions occurring at and surrounding the accident are substantially these: The defendant was engaged in constructing a dam in the Ohio river, and as an adjunct to the work it had built a coffer-dam, which is intended to be a water-tight inclosure resting in the bottom of the river, and out of which the water it
The negligence relied on is that decedent could and would have been able to extricate himself but for the rapid current .produced by the water from the chute which defendant through its agents and servants neglected to stop by shutting off the pumps after they discovered the perilous situation of decedent, it being charged that proper care on their part demanded that such action should be taken and that if it had been decedent could have been rescued either through his own efforts or those of others, and he would not have been drowned.
The proof shows that no regular foreman or superior servant was in immediate charge of the work in which the decedent was engaged with reference to the adjustment of the ratchet. However, one of the three so engaged was a brother of the foreman having charge of the general work, and the testimony shows that if anything happened the brother would take charge or notify the regular foreman. At the particular time of the tragedy all' three seem to have been engaged in the same character of work. As soon as the decedent fell and was carried into the river below, his two companions almost immediately procured a contrivance called a “key form” or
Before considering that question a preliminary one is presented, which is discussed at some length by counsel for both parties, it being whether the brother of defendant’s foreman or anyone else had charge of the work or was in any sense a' superior to the decedent at the time. But under the view we take of this case we do not d.eem it necessary to determine that question,- for, conceding for the purpose of this case only that there was a superior servant in charge of the work, and under whom
Negligence in law, for which the one guilty of .it is liable-, is a relative term dependent upon the circumstances and conditions, and is a failure or omission to do or abstain from doing that which an ordinarily prudent man would do under the same conditions or circumstances. In cases of emergency, neither produced nor contributed to by the one seeking to rely on it, a failure to choose the safer of two courses of action as manifested by subsequent events will not constitute negligence when the course selected was one dictated by ordinarily prudent action, and such as an ordinarily prudent man would have selected under the circumstances. Schroeder v. St. Louis Transit Co., 111 Mo. App. 67; Moore v. Maine Central R. Co., 106 Maine 297, and 29 Cyc. 434. The principle is thus briefly stated in the volume of Cyc. referred to: “And if an act has to be performed in a brief period with no time in which to determine the best course, negligence cannot be predicated of it.” The quotation from the text is supported by many authorities from different courts, and is analagous to that rule so universally applied by this court to the effect that a plaintiff is not guilty of contributory negligence if being placed in emer
In this case the emergency was the result of no fault of any servant of defendant superior to deceased or otherwise. Each of the ones present appear to have acted with prudence and consideration. They no doubt believed that they had been heard when they hallooed for the pump to be stopped. There was no time to be lost in waiting to see. What deceased most immediately needed was something upon which he could rely to prevent his sinking and to assist him to get to a place of safety.' The only available thing was procured and every effort made to accomplish with it the purpose intended. When it was found that such efforts were fruitless, with all reasonable dispatch the pumps were ordered to be and were stopped. Can it be said under the facts of this case and the rule of law referred to that the agents or servants of defendant were guilty of negligence in the particulars charged because, forsooth, they did not first see to and procure the stopping of the pumps? We think not. To have thus consumed the time required may have been to no purpose after all, and also may have been at the expense of a possible chance to save the life of deceased, and the law does not demand in such emergencies mathematical accuracy or conduct of exact calculation so as to fasten liability on the actor should he miscalculate as to the proper things to do and the order in which they should be done.
Passing this question, however, it was essential to plaintiff’s recovery that there should have been some evidence showing that the complained of negligence was the proximate cause of the decedent’s death. Or, con-, versely stated, that his death must have resulted as a natural sequence from the alleged negligence. It is true that the current below the mouth of the chute would have largely abated if not entirely ceased if the water from the pumps had been stopped, but the evidence wholly fails to show that if this had been done the decedent’s life would have been saved, for, as we have heretofore seen, he was not in the current at the time his companions attempted to rescue him. Other causes than .the continuous flow of the current may have contributed to his being drowned; but, however this may be, the evidence, accord
- This being true, the court did not err in sustaining the motion for a peremptory instruction to find for the defendant, and the judgment is affirmed.