149 Ky. 627 | Ky. Ct. App. | 1912
Opinion of the Court by
Affirming.
Herbert Koke, a boy about fifteen years old, was killed while in the service of the Andrews Steel Company and this suit was brought to recoved foir his death. On the trial of the case the plaintiff offered to file an amended petition. The defendant objected on
It is insisted that the court erred in refusing to allow the amended petition to be filed but the amended petition is not made a part of the record by an order of the court or by bill of exceptions. It cannot, therefore, be considered on the appeal although copied into the record. (Hortsman v. C. & L. R. R. Co., 18 B. M. 218; Stafford v. Dyer, 19 Rep., 155; Krish v. Ky. Jeans Co., 31 R., 436.)
The facts shown by the plaintiff, on the trial were these:
Herbert Koke was a furnace boy; that is, it was his duty to open the door of the furnace. The Andrews Steel Company had running through its plant two railroad tracks and on these tracks it operated a locomotive: On the opposite side of the tracks from the furnace was a water closet which was used by the employes at the furnace. At the time in question there were seven or eight cars standing on one of these tracks. The tracks were not straight, but curved, and as the engine came up to the cars the engineer could not see around the curve or see the lower end of the cut of cars. The engineer and fireman testified that they came in on the track with the locomotive for the purpose of coupling to the front car. They had with them a switchman, Hargreaves, on the front of the tender. When they got up near the front car Hargreaves got off the engine and at a signal from him they backed the engine up to that car and coupled to it. Hargreaves then walked down by the side of the cars and the engineer waited there for a signal but Hargreaves gave them no signal and a few minutes later a boy came along and told them that young Koke was hurt. Albert Hargreaves testified that the cars standing on the track were uncoupled from each other and when they made the coupling to the first car the other cars bumped apart. The first he saw of Koke he was leaning against an old shanty beside the space between the third and fourth cars groaning and in great agony. He tried to speak but could not. He picked
It is insisted for the plaintiff that Koke was passing from the water closet to his place of work just as the ears bumped together and was caught between the bumpers. There is no evidence that those in charge of the engine did not give the proper signal of the approach of the engine to the cars before they attempted to couple to them and there is no proof of any negligence in making the coupling, unless it may be inferred from the fact that they undertook to couple to the first car without first going down to the other cars and giving notice there that they were about to move them. It is shown in the proof that when the cars were standing on these tracks, the employes in going to the water closet sometimes went under them or over them or between or around them; and it is also shown that the space above referred to between the two cars was made by the hands at the hopper who had moved the car up; for the purpose of unloading it and had thus left a space between it and the next car.
Those operating a railroad are not required to send a man along a cut of cars to ascertain if anybody is between them before making a coupling to the cars. Where cars have been left standing and an opening has been left between them for persons to pass through, it is incumbent upon those moving the cars to give timely notice of their intention so to do before backing against the cars and closing up the space. But, that is not this case. No opening had been left between these cars for persons to pass through. The men in charge of the engine did not know that the car at the hopper had been moved and a space left between it and the
The court properly refused to admit evidence to the effect that the train crew was insufficient, this not being-alleged in the petition. The sole ground of recovery set up in the petition being- negligence in the operation of the train, proof of the insufficiency of the crew was not admissible.
The statements of the deceased, made more than an hour after his injury, were properly excluded as this constituted no part of the res gestae.
Where a witness wh.o is introduced on the trial fails to prove a fact which the plaintiff expects him to prove evidence that the witness had on some other occasion so stated the fact is admissible to contradict the witness but is inadmissible as substantitive evidence of the fact. The plaintiff, therefore, could not show that the deceased had made a statement at the time of his injury by proving that the witness had so testified on another occasion. (Champ v. Commonwealth, 2 Met., 17; Nicholoson v. Rust, 21 R., 645.)
Judgment affirmed.