83 Ky. 675 | Ky. Ct. App. | 1886
delivered the opinion op the court.
Tlie appellee, J. M. Moore, while in the employ of the appellant, the Louisville and Nashville Railroad
The train consisted of the locomotive and tender, and either twenty-two or twenty-three freight cars. The crew, of a conductor, engineer, fireman, and three brakemen; and of the latter the appellee was the head one. The train had been side-tracked, and then cut in two at the crossing of a road, to enable travelers to pass. The “live portion” of it consisted of the locomotive and three cars; the “dead portion ” of probably nineteen cars, and the space between the two portions was about fifty or sixty feet. A short distance down the side-track, beyond where the train had been thus halted, was a barrel of flour to be taken on board; and to save backing down after it the other two brakemen went after it. The testimony tends to show that they had only brought it a part of the way, and that one of them had returned, and gotten upon a car of the dead portion of the train when the accident occurred. After the train had been thus side-tracked for an hour, the conductor started toward the telegraph office, which was near by, and where the engineer already was; and as he did so, he ordered the appellee, Moore, to couple the train. The latter, in -obedience to this order, went to the end of the dead portion of 1¿he train nearest to the live portion, and the latter backed against the former with great and unusual force, the fireman alone being upon the engine and operating it. The evidence shows that he
It is evident, however, that the two portions of the train came together with great force. The appellee had gone between them to make the coupling; to save himself he caught hold of the step-ladder upon the side of the box-car next to him, and which was a part of the dead portion of the train; but the wheel of the other car caught his foot, and it was nut off as he was dragged back with the train, and his leg ground and broken ofü piece by piece, and wrenched from the knee socket, and portions of the bone left along the track.
He brought this action, not by virtue of any statute, but under the general law, to recover damages upon the ground that the injury resulted from the willful and gross neglect of the company’s employees in charge of the train. A special verdict was rendered, by which the jury fixed the entire damages at nine thousand dollars, of which eight thousand--dollars were given as compensatory and one thousand dollars as exemplary.
Moreover, it appears that immediately after the-conductor gave the order he found the engineer in the telegraph office; and yet he did not countermand the direction he had given to the appellee.
It is urged, however,- that the injury happened without the knowledge or intervention of the conductor or the engineer; that the appellee saw before he attempted to make the coupling that the fireman was controlling the engine, and that the train was moving rapidly; that the accident resulted, therefore, from the joint neglect of the appellee, the fireman, and another brakeman; and as the two latter had no control over the appellee, but were fellow-servants in a common employment, that therefore the peremptory instruction should have been given. We have already seen that this statement is incorrect as to the conductor; but if it was the custom of the appellant, as appears from the testimony, to permit the fireman upon its freight trains to act as
It was gross neglect upon the part of the conduc tor to permit this inexperienced boy to operate the-train. He ordered the appellee to make the coupling, and before it was attempted he knew that the engineer was not upon the train, and that no one was there, to move it save the fireman, and yet he allowed it to be done.
Numerous interrogatories were propounded to the-jury; eight by the appellee; eighteen by the appellant, and ten by the court, or thirty-six in all; and the jury found specially that the appellee was injured through the gross and willful neglect of the-employees of the company, and that the conductor and engineer were so guilty; fixed the amount of the damages; also that the appellee was not guilty of any contributory neglect; that notwithstanding-his conduct the employees of the appellant could, by the exercise of ordinary care, have prevented the-injury; that the fireman was not competent to man-' age the engine, and that it was his duty, before he backed the train to see that the' appellee had made the coupling safely; that the appellee had been in the appellant’s employ about two weeks, had been acting as a brakeman for four or five years, and was an experienced one; that when he undertook to make the coupling he did not let the pin fall and stoop to pick it up and thus get caught; that tha
It is contended that the general findings, such as
When one enters upon an employment for another he assumes all the ordinary risks attendant upon it; and where a number of persons enter a common employment for another, all being upon ' a common footing and none superior or subordinate to the other, and one receives an injury by the neglect of •another in the discharge of the undertaken duty, they are regarded as the agents of each other, and no recovery can be had against the employer.
It was once the English rule that it did not matter if the injured servant was subordinate to the neglectful one and under his control; or if they were engaged in different grades and departments of the service. To hold the master responsible he must have had some personal connection with the injury, provided, of course, that he was not neglectful in the selection and retention of his servants.
This rule in that country seems yet to prevail, as well as in many courts of this country, save that if the injured party be in a different grade of the
The rule as thus laid down is to our mind the-proper one, and consistent with public policy. The-Supreme Court. of the United States in the case of the C. & M. Railroad v. Ross, 112 U. S., 377, after-ably reviewing both the English and American cases, has adopted the Ohio and Kentucky rule as the correct one.
Here the conductor had the entire control of the train, and subject to him, to a certain extent, the engineer had control of the brakemen.
These two superior officers were the personal representatives of the corporation as to the appellee; and for the gross neglect of either the corporation is responsible. In no proper sense of. the term were-
Applying the rule thus sanctioned by the Supreme ■Court, the appellant is responsible for the appellee’s injury. All necessary questions, indeed, more than were necessary, were asked of the jury, either to develop the facts fixing or excusing negligence. It is urged that some of the answers are unmeaning, and can not be understood, especially to the fourth interrogatory propounded by the court, and which included several distinct questions. It is, however, ■evident that the answer was" to the first one, and it- being answered in the negative, no answer was necessary to the others, as they were altogether "based upon the idea of an affirmative answer to the first one.
The three general instructions defining the different degrees of negligence were correct beyond •question, unless it be the second one, and it was, if anything, more favorable to the appellant than it had a right to expect.
It is urged that no instruction was given defining ■contributory neglect. None, however, was asked by the appellant. Moreover, the jury found, that notwithstanding the acts of the appellee, yet the injury could have been avoided by the exercise of reasonable care upon the part of the appellant’s, other
Judgment affirmed.