119 Ky. 18 | Ky. Ct. App. | 1904
Opinion op the court by
Affirming.
Appellee, Sydnor, as administrator of Elijah T. Renfro, filed this suit against appellant to recover for the death of his intestate, which was charged to have occurred by reason of its gross negligence. The defendant traversed the allegations of the petitioif, and pleaded contributory negligence on the part of Renfro, but for which he would not have been injured. It was also pleaded that Renfro was working with one of appellant’s servants employed in the same grade of service and engaged in the same character of labor, neither being superior in authority to the other, and that the accident which caused the death of Renfro was due either wholly to the negligence of his fellow servant or to his negligence together with the negligence of the fellow servant. The jury to whom the case was submitted found a verdict in favor ■of the plaintiff in the sum of $6,000, on which judgment was entered, and, the defendant’s motion for a new .trial being overruled, it appeals.
The facts of the case are as follows: The plaintiff’s intestate and John L. McDowell were car repairers in the service of the Southern Railway Company. They were directed by their foreman, O. L. Harris, to make certain repairs to a freight car, which was at the time in the yard of the defendant, upon one of the tracks sometimes used as a repair track. To make the repairs it was necessary for them to get under the car. It was customary for workmen engaged
The defendant moved the court to give the jury this instruction, which was refused by the court: “(12) The court instructs the jury that if they believe from the evidence that Renfro and McDowell were associated; in the work of repairing the car under which Renfro was killed, and that the said Renfro left to McDowell the task of giving the usual warning of their presence under said car, then the
Tn giving the third instruction the court apparently had in mind this allegation of the answer: “Defendant further states that the said accident and the death of said E. T. Renfro was caused either wholly by the negligence of Renfro’s fellow servant or by the negligence of his said fellow servant together with the negligence of Renfro himself; and it states that one or the other of said facts alleged alternatively is true, but defendant does not know which, and therefore pleads said facts in the alternative.” To have a correct understanding of the application of these instrucetions, it must also be remembered that appellant was not the master of the two car repairers, Renfro and McDowell. They were employed, as stated, by the Southern Railway Company, and were in its service at the time. Appellant is a bridge and transfer company. In connection with the operation of trains across the bridge it maintains a switchyard in Louis
Appellant complains of the instructions given, because, he argues, it incorporates into our law the doctrine of comparative negligence, a doctrine hitherto rejected by the Kentucky courts. We fail to so understand the effect of the instructions. The jury were not by them warranted in comparing the degrees of negligence of either decedent or his fellow servant and that of appellant further than has always been allowed in this State; that is, if the injury was inflicted by reason of the negligence of the deceased, or would not have occurred but for his negligence, then appellant is not liable, although it may have been also negligent. The instruction which tells the jury that if decedent and his fellow servant were both so negligent that the injury would not have happened but for it, notwithstanding appellant’s negligence, the law was for the appellant, merely states in another and appropriate form the doctrine of contributory negligence, coupled with the idea that if another, not a servant of appellant, by his own act alone or in conjunction with the decedent, brought about the injury, appellant is not liable. Whatever may have been the opinion of the circuit judge or counsel on the subject of the master’s liability to an. injured servant where the injury was caused by the joint negligence of the master and of a
■In this case the decedent was at the place of injury as a matter of right, and where his presence ought to have been anticipated by appellant’s switching crew, in view of the custom of allowing repairs constantly to be made at that and similar points. It was, therefore, the duty of those in charge of the engines and moving cars to keep a lookout for the car repairers and their signals. If the car repairer put out a signal, it Avould manifestly be useless as a protection unless those operating the trains were required to look out for it, and govern their actions by it. The signal could have no effect on the moving trains unless it was seen. It could not be seen unless some person was so placed on the approaching cars that he could see it. Therefore it was proper to tell the jury that although decedent was negligent in not causing the signal to be placed further around the curve, yet if appellant’s servants in charge of the train by the exercise of ordinary care on their part could have discovered the signal as it was in fact placed in time to have averted the injury, and failed, because of negligence, to discover it, by which the injury was occasioned, appellant was liable. This was in line with the doctrine frequently announced by this court that where, in a city or town, at street crossings and the like, where persons have the right (o be and may reasonably be expected, it is the duty of those operating trains there to keep a lookout to discover them, and a failure to do this is actionable, notwithstanding the contributory negligence of the injured person, if by observing that duty the injury could have been averted notwithstanding the negligence of the injured person. While negligence of trespassers need not ordinarily be anticipated, nor ihat of employes or licensees, yet where the duty is to main
McDowell was a fellow servant of decedent, Renfro, in repairing the car, it is true. But it does not follow from that fact that anybody in connection with McDowell could, wrongfully' injure or kill Renfro in that work and escape liability on the ground that the fellow servant, MaDowell, aided in the wrongful áct. Nothing is better settled than that, when two or more by their joint tort damage another, the joint tort feasors are jointly and severally liable to the injured person for his entire damage. The doctrine of non-liability of master' or employer to one of his servants for' an injury inflicted by the negligence of a fellow servant
Applying these principles to the facts in this case, as Renfro and McDowell were not servants of appellant, Kentucky & Indiana Railroad •& Bridge Company, the latter is not entitled to any benefit of the doctrine applicable as between a master and his servants. The third instruction seems to fairly submit this yiew of the case.
Perceiving no error prejudicial to appellant’s substantial rights, the judgment is affirmed, with damages.