182 Ky. 267 | Ky. Ct. App. | 1918
Opinion of the Court by
Reversing.
This action was instituted by the appellee, Harrison White, against the appellant, Lexington & Eastern Railway Company, Mason & Hanger Company and Armstrong & Bragg Company. He alleged, that he was a
After the filing, by the appellant and the Mason & Hanger Company, of general demurrers to the petition, which were overruled, then, each, filed an answer.
The appellant, Railway Company, traversed the averments of the petition, and in addition, thereto, interposed pleas of contributory negligence and assumed risk, and, also, averred that appellee, at the time he received his injuries, was not its servant, but, was an employe, and in the service of its co-defendants, Mason & Hanger Company and Armstrong & Bragg Company, who were independent contractors, and that appellee’s cause of action, if any, was exclusively against them, or one or the other of them.
The appellee, interposed a general demurrer to eacn of the answers and to each paragraph of each answer, all of which were overruled, and then, by agreement of the parties, the affirmative matters in each' of the answers, was controverted upon the record.
Previous to the completion of the issues, between appellee and the two answering defendants, at the instance of appellee, and upon his motion, the action was ordered to be dismissed, as to the Armstrong & Bragg Company.
The action coming on for trial, at the completion of the evidence, offered, for the appellee, a motion for a directed verdict in favor of the Mason & Hanger Company, was sustained, and the action as to it, was adjudged to be dismissed.
A similar motion in favor of the appellant, railroad company, was overruled, and at the conclusion of all the evidence, it, again, interposed a motion for a directed verdict in its favor, which was, also, overruled.
The action as between appellee and appellant, railway company, was submitted to the jury, which rendered a verdict in favor of appellee for the sum of $3,000.00, in damages, and a judgment of the court was rendered in accordance with the verdict.
The appellant filed grounds, and moved the court to grant it a new trial, which being overruled, it has appealed.
The judgment is sought to be reversed, because, as is contended, the court erred in denying a directed verdict, for appellant; in giving and .refusing instructions to the jury; in the admission and rejecting of testimony; and because the verdict is contrary to law^and not sustained by the evidence; and because the verdict is excessive and made under the influence of passion and prejudice.
The lining of the tunnel with concrete had been completed and for two or three days preceding the receiving of the injuries by the appellee, the Armstrong & Bragg Company had been engaged with a force of from ten to a dozen men, of whom the appellee was one, in gathering-together and removing from the tunnel the loose and wasted concrete and other debris, which remained in the tunnel from the work of lining it. It used a flat car propelled by a small engine denominated a “dinkey,” in removing the debris from the tunnel. The' men would gather up the debris and place it upon the flat car with shovels, and when the car was loaded, it would be pulled out of the tunnel and the debris east upon the outside. On the 25th day of September, the servants of Armstrong & Bragg Company, including appellee, were, under the direction of a foreman of the employer, engaged in working at a point in the tunnel, according to the testimony of appellee, about one-third of the distance through the tunnel from the entrance in the direction of Jackson, although other witnesses place them at a point about two-thirds of the distance through the tunnel from that entrance. A train, other than a passenger train, presumably a freight ormonstruction train, entered the tunnel from the entrance, in the direction of Jackson. As it approached the men in the tunnel, they received warning of its coming, in some way, not stated, when they, including appellee, got upon the flat car, which was then moved out of the tunnel in the direction of Hazard. The railway train then followed the flat car and “dinkey” on out of the tunnel, and attaching a box car or box cars, immediately returned through the tunnel in the direction, from which, it had come. As stated by ap
One issue which seems to have been sharply contested was the relationship between the appellee and appellant; the appellee contending, that, he was a servant of appellant, while appellant contends, that, he was á servant of an independent contractor and that the relationship of master and servant did not exist between them. There is no dispute as to the fact that appellee was an employee of Armstrong & Bragg Company, which was a subcontractor for the work to be done in relation to the lining of the tunnel, and it does not appear that appellant, in any way, took any authority over, or supervision of, the appellee. The contracts, in writing, between appellant and Mason & Hanger Company, and between the latter company and Armstrong & Bragg Company or such parts of them, as the parties deemed necessary to illustrate the issue, were offered in the evidence. Without entering into a discussion of the many conditions and covenants of these contracts, we have concluded that the Armstrong & Bragg Company, in the performance of their contract, represented the will of its employer only as to the result of the work and not as to the means by which it was to be accomplished; it had the right to select its own servants; the appellant had no authority over the employees of Armstrong & Bragg Company, and no right to direct the manner in which the work should be done, further, than to require, that it should be done in compliance with the specifications under which it was contracted to be done by the Mason & Hanger Company. The contract provides that the railway company should have an engineer to exercise a general supervision over the work, to see that it was done according to the contract, but the engineer was not authorized to interfere or direct as to the details of the work, or as to the manner in which it should be done. A part of one of the clauses of the contracts is almost identical with the wording of a clause of a contract in M. H. & E. R. R. Co. v. Owen, 147 Ky. 1, which this court held, in that case, to make the relation of master and servant exist and not that of an employer and an independent contractor, but the remainder of the clause in the contract in the instant case, changes the force arid signification of the language quoted in the opinion, supra.
The railway company, of course, is not liable to appellee for an'injury suffered by him unless a failure to perform a duty, which.lt owed to him, was the proximate cause of the injury. It was not negligence on the part of appellant, nor the failure of a duty to appellee, for it to operate its trains in the course of its lawful business, through the tunnel. It was not necessary for it to .refrain from the operation of its trains through the tunnel, in order to extend to appellee a reasonable protection from injury. To refrain from- the operation of the trains would be an unreasonable requirement. The trains can not be operated through a tunnel without the engines putting forth smoke and gases, which will remain until the particles settle or are driven out. Hence, it was not negligence on the part of the railway company to fill the tunnel with smoke and gases from burning coal, if it was -necessarily done in the operation of its trains, in the course of its business. It was, however, clearly the duty of the railway company when proposing to run a train through the tunnel to give to the men who were working in the tunnel, a warning reasonably sufficient to notify them of its purpose, and in time, reasonably sufficient to enable the men to make use of such precautions as were reasonably necessary to save themselvs from injury, by going out of the tunnel. If, after such warning, they chose to remain in the tunnel they assumed" whatever risk they took in so doing, for it was their duty to exercise ordinary care for their own safety. The duty of exercising ordinary care for their own safety resting upon the men, if the railway company failed to give warning of the intended passing of a train through the tunnel, and thus was guilty of negligence in such failure, yet, if the workmen received knowledge of the coming of the train in time, to enable them to retire from the tunnel, and declined to do so, they assumed the risk of remain
(b) It is insisted, that a peremptory instruction, directing a verdict for appellant should have been given for the following further reasons:
(1) The evidence failed to show any negligence upon the part of the railway; (2) The suffocation of appellee by the smoke could not have been contemplated by any one; (3) it can not be determined whether the smoke from the “dinkey” engine or that from the railway’s engine caused the suffocation; and (4) there was a variance between the allegations of the petition and the proof. These contentions will be considered, in the order above stated.
(bl) While the witnesses for appellee do not fully corroborate his theory of the manner of the injury, the evidence of appellee tends to prove, that, the servants of appellant, operating its trains, failed to give any warning of the purpose to enter the tunnel with the train, the second time, it entered from the direction of Jackson, and that it was very near to him, before he was aware of it, and that he did not have time, reasonably, in which to enable him to retire from the tunnel after he became aware of its presence in the tunnel, and before he was overcome by suffocation; that the “dinkey” with the flat car rushed away before he had an opportunity to get upon it; and as before stated that he was then nearly one thousand feet from the mouth of the tunnel in the direction of Hazard, and nearly one-half that far from the mouth toward Jackson ‘from which direction the train came or was coming; that it was so dark, that one could not see, by the lights, at hand more than two feet, and was too dark to walk and that he was very quickly
“The comparative degree in the culpability of the two will not affect the liability of either. If both were negligent in a manner contributing to the result, they are liable jointly or severally.” City of Louisville v. Heitkemper’s Admx., 169 Ky. 167; Shearman & Redfield on Negligence, section 346; Whitman & Co. v. Warren, 23 R. 2120; Louisville v. Hart’s Admr., 143 Ky. 171; Paducah Traction Co. v. Sine, 111 S. W. 356; Louisville Home Telephone Co. v. Gasper, &c., 123 Ky. 128. The evidence of appellee is sufficient to require the submission of the action to the jury upon the question of negligence or no negligence of the railway company.
(b2) The contention that the probable suffocation of appellee by smoke could not have been within the contemplation of anyone, and hence lacking in an element necessary to constitute negligence, is not tenable. Although no one had previously been overcome by smoke in the tunnel, it is a matter of common knowledge, that a sufficiency of smoke will- suffocate one exposed to it. When the servants of appellant .entered the tunnel with the train from the mouth, toward Jackson, the second time, they knew that the engine had just previous to that time passed through the tunnel twice in rapid succession. Each passing of the engine added to the density of the smoke. They, also, knew that the “dinkey” had just withdrawn, and it can not be held, that under these circumstances, it would not be reasonably anticipated, that the addition to the density of the smoke by a third passage of the engine, would not be calculated to be injurious to life and health.
(b4)' The variance complained of is, that the petition alleged, that appellee was a servant of all the defendants — the appellant, the Mason & Hanger Company, and Armstrong & Bragg Company — while the proof showed, that he was the servant of the latter, alone, and not of appellant. The appellee’s cause of action, however existed, regardless of the fact, that he was not a servant of appellant, as alleged. The variance was not material, because appellant could not have been misled by it in maintaining its defense upon the merits. This variance might have been corrected upon the trial and upon the return of the case may yet be done. Civil Code, sections 129, 130, 131.
(6) The instructions directed the jury to find for appellee, if the appellant’s engines filled the tunnel with smoke,'while appellee was working therein, and he suffered injuries, therefrom. Thereby, a recovery was allowed against appellant, for an act, which did not amount to an act of negligence upon its part unless done without warning. The action seems to have been submitted upon an incorrect theory, as to the respective rights of the parties, which more or less affected all the instructions given, except that relating to the measure of recovery. The latter instruction is criticized for the reason, that it permitted a recovery for lost time, when the petition did not set out the time lost, nor the damages suffered thereby. Damages sought for lost time, on account of
For the reasons indicated the judgment is reversed, and cause remanded for proceedings not inconsistent with this opinion.