93 Ky. 449 | Ky. Ct. App. | 1892
deutbebd the opinion op the court.
At the September term, 1890, of the Kent on Circuit Court the appellee recovered a judgment, based on a verdict, of fifteen thousand dollars for damages on account of personal injuries sustained by him and caused, as is alleged, by the negligence of the appellant, the Kentucky Central Railway Company.
The appellee, on the 7th of August, 1889, at the instance of Mrs. Spotts, who lived at Eighth and "Washington streets, in the city of Covington, had gone to purchase bread at the grocery of one Linn, located at the southwest corner of Ninth and Washington streets. Where Ninth street intersects Washington street there are three separate railway tracks laid on the last named street. One of the tracks belonged to the Chesapeake & Ohio road and the two remaining tracks to the appellant, lying west of the Chesapeake & Ohio track. The appellant had a switch on its tracks, the south end of' it being, as the proof shows, about one hundred feet from Ninth street. At the time of the injury the appellee (a boy) was about thirteen years of age and was temporarily residing with his uncle, T)r. Kearns, and after he had purchased the bread, in order to reach his uncle’s house or that of Mrs. Spotts who had sent him on the errand, he had to cross Washington street. The Chesapeake & Ohio track was west of the tracks of the appellant; and after he had crossed the Chesapeake & Ohio
Whether any such defense existed in this case will be first considered. The train of the appellant was made up of the engine and six cars; the train or engine was running backward, and was pushing in advance of it two gondola cars and pulling four box cars; the train was going north, and the purpose was to make a running switch; that is, they were to place the four box cars on another track without stopping the engine or train. While the train was in fact going north, the head of the engine, or the front part, was south. There were on the train at the time of the accident five employes. The engineer and firemen -were in the cab of the engine. O’Donnell, the fireman, was on the front part of the engine; that is, between the engine and the box cars that the engine was pulling, and was there for the purpose oí separating the box cars from the engine when the signal was given. One of the brakemen was on top of the box cars, and another brakeman setting the switch, or preparing to do so. There was no one on either of the gondola cars that were being pushed north to give warning to those on the street, or those crossing it, of the train’s approach, and no watchman stationed at the crossing for that purpose. We shall assume that the bell was ringing to give notice to the passengers of the train’s approach; employes on the train so state, and there is no reason for discrediting them. When the time arrived for detaching the box cars the signal was.given, and the engine, as the
It is said that the little fellow was picking up pebbles from the street and examining them, and perhaps he was, but that his life was in peril from the time he undertook to cross the tracks of these roads is manifest, and one of mature years would. probably have met with the same fate. But whether so or not, if there had been a watchman at the crossing, or even a brakeman on the far end of the gondolas, that was at least sixty feet from the engine, this accident would have been avoided. It is true the employes, when they discovered the danger, used every effort within their power to avoid the injury, even to the sacrifice of their own lives; and it may be said that the company, by reason of its neglect in not having watchmen at these crossings, or in making running
It is an improper use of the streets of a city to so use them by railroad tracks and trains as to prevent the use of the streets for ordinary business purposes, or to use the streets for the purpose of making wild switching that must necessarily endanger the lives of those who are compelled to cross or use them. The elementary books establish the doctrine that it is 'negligence per se on the part of a railroad company to use a running switch in a populous town or city. “ The construction and use of a running switch on a highway in the midst of a populous town or village is of itself an act of gross and criminal negligence on the part of the company.” (Shearman & Redfield on Negligence, 3d ed., sec. 446; Ky. & Ind. Bridge Co. v. Krieger, 93 Ky., 243.)
In the case of the Illinois Central Railroad Company v. Bache’s Adms’r, reported in 55 Ill., 379, it was held that where a running or flying switch was used in 'a populous part of a city of ten or twelve thousand inhabitants, at a crossing or along an alley used by the public, and the cars thrown upon the side track having a momentum of five miles an hour, from which an injury occurred, the company was guilty of a high degree of negligence, and the fact that signals of alarm were given from the engine employed in the switching, intended for those crossing the track, afforded no excuse. In this case the engine, with the cars attached, caused the injury, and the decided weight of the testimony is that it resulted in the effort to avoid the detached cars and to make the switch
This rule does not dispense with the duty on the part of one crossing or using the street to use ordinarjs care and prudence for his own safety, and if he fails to do this and is guilty of gross neglect, as well as the party injuring him, and but for which the accident, would not have happened, he can not recover. (Ferguson v. Wisconsin Central Road, 63 Wis., 145.) We have been referred to no authority by counsel in which a recovery has been denied upon such a state of case as this, or in cases where the facts conduce to show such gross neglect on the part of' the company. The neglect consists, first, in the company making flying switches in the street; second, in not having a brakeman or some other employe on the front gondola ; and, lastly, in not having a watchman at a crossing used, to use the language of a witness, as much by the
It is contended by counsel for the appellee that the instructions form no part of the record. After the verdict a motion for a new trial was made within the three days, as provided by section 342 of the Code; that motion was heard and overruled by the court. The appellant then moved to set aside the order overruling the motion, to enable it to file other grounds, and that motion prevailed -over the objections of counsel for the appellee. Section 343 of the Code provides that the motion must be by written grounds filed at the time of making the motion, and section 342 provides that it must be done within three days after the verdict, unless unavoidably prevented, making as an exception the cause mentioned in subsection 7 of section 340. By an amendment, where there is a special verdict, the grounds must he filed within three days after the judgment on the special finding. The object of requiring the motion to be made within the three days is to enable the court to render a judgment without delay, and when the facts and questions of law áre fresh in the minds of court and counsel; and it is the evident meaning and purpose of the Code to close the door to any other motion for a new trial upon any other grounds than the exceptions made, unless unavoidably prevented. Such, too, is a safe construction of this provision of the Code; for if motions are permitted to be renewed from day to day during the term, the time of the court would be consumed in hearing motions for new trials, for amendments would likely be allowed whenever the minds of counsel suggested some additional reason for another hearing. This court, in Houston v. Kidwell, 83 Ky., 301, adjudged
It is true the court may, as a general rule, set aside orders made during the same term at which they were entered, and, under this well-recognized rule of practice, may set aside the order refusing a new trial and grant ■one; but to permit counsel, after the motion has been overruled, to file other grounds, is in violation of the spirit and meaning of the Code. Counsel realized, doubtless, that the instructions given by the court were more favorable to the appellant than the law authorized, as the •employes were confined to the exercise of ordinary care and required only to give warning of the train’s approach by bell or whistle, when neither, if shown to have been given, would have exempted the company from responsibility. The court also in effect said to the jury that if the appellee was guilty of negligence he could not recover, if but for the negligence the injury would not have been sustained, unless the appellant became aware of the danger, and by the exercise of ordinary care could have avoided the injury. This boy was only required to exercise that degree of care that an ordinarily prudent child of his age would have exercised, and if he exposed himself to danger in such a manner as that the injury could not be avoided by the defendant by the exercise of the proper care to prevent it, no recovery should be had; but if the' child was on the street or crossing, where it had the right to be, and was injured by reason of the gross neglect of the defendant, although guilty himself of ordinary neglect, looking to one of his age and inexperience, a recovery
There were some objections made to the action of the court during the progress of the trial that will not be considered, as there was no abuse of discretion and no harm resulting from such action.
The appellant offered to prove by a witness that at the time the legs of the appellee were amputated, Dr. Kearns, uncle of the plaintiff, said, “ he had often warned plaintiff" to quit playing on the railway tracks at the place where the accident happened.” This offer was refused for two reasons. Dr. Kearns could himself have testified, and, besides, it was incompetent. The boy was then under the influence of morphine, and, if not, it was incompetent, as it could not have affected the result and in nowise lessened the care to be exercised by the appellant, or increased that to be exercised by the appellee.
A witness was asked, on cross-examination by defendant’s counsel, if he did not then have a controversy with the defendant, or was hostile to it,*and when re-examined by the plaintiff’s counsel was asked if he had not recovered a judgment for $12,500. The question was objected to and the court refused to allow the witness to answer, and thereupon counsel for the defense moved to set aside the swearing of the jury, and the motion-was overruled. The court, it seems to us, fully protected the rights of the defense in requiring the witness not to answer.
There was an objection and an exception taken to the action of the court in refusing to send the jury to view the premises at a particular time during the trial and before the testimony closed. The court refused to do this, but at the close of the testimony sent the jury to
Some affidavits were filed showing the importance of other testimony, discovered after the trial had closed, and it appearing that these witnesses had been previously summoned, except one, who was an employe of the company, the court refused to open the case. There was no error in this regard.
The judgment is affirmed.