| Ky. Ct. App. | Dec 8, 1899
deliveeed the opinion of the coubt.
This is an action for damages for causing the death of Edward B. Linck, brought in the Todd Circuit' Court. The original petition was in two paragraphs, and alleged
The petition, as amended the last time, alleges that decedent, Linck, was a conductor in charge of a freight train on appellee’s road, and at the time the injury that resulted in death was inflicted, decedent was acting as a brakeman
It is next alleged that the agents and servants of appellee, not in charge of the train or operating it, negligently and carelessly left upon the track, where decedent must pass in making the coupling, a lot of old iron and other material, over which decedent stumbled and fell in attempting to avoid the negligence of the engineer as above; that the fact of the old iron and other obstructions being there was unknown to decedent; that by reason of this negligence the injury occurred from which death resulted. It is also alleged that the injury resulted by reason of a fall over the old iron and other obstructions above stated, carelessly and negligently left on the track by the track repairers, and of whose presence decedent did not know, nor by the exercise of reasonable care could have discovered.
It was also alleged that the coupler on the car was heavy and cumbersome by reason of a defect, and did not lit the car to be coupled thereto, and that to make the coupling it was necessary to lift up the defective coupler, and in so doing decedent was injured; that the defective condition of the coupler on a car not in his train was discovered only after decedent went in to make the coupling, and then too late to avoid the negligence of the engineer in backing too fast and hard, and that but for this defective
Beginning with the case of Railroad Co. v. Collins, 2 Duv., 118; [87 Am. Dec., 486], this court, by a long and unbroken line of decisions, including Railway Co. v. Palmer, 98 Ky., 382" court="Ky. Ct. App." date_filed="1895-12-12" href="https://app.midpage.ai/document/cincinnati-c-railroad-v-palmer-7133276?utm_source=webapp" opinion_id="7133276">98 Ky., 382; [33 S. W., 199], and Edmonson v. Kentucky Central Railway Co., 20 Ky. Law Rep., 1296, [49 S.W., 200" court="Ky. Ct. App." date_filed="1899-01-27" href="https://app.midpage.ai/document/edmonson-v-kentucky-central-railway-co-7134061?utm_source=webapp" opinion_id="7134061">49 S. W., 200, 448], has repeatedly held that where two servants of the same master are equal, and neither superior to the other, no recovery can be had, as against the master, by one servant for the negligence oí the other. It has also been held that where two servants are in the' same field of labor, but are not of the same rank, the master is not liable for an injury to the subordinate by the ordinary negligence of the superior, but is liable only in case of gross negligence of the superior.
The Edmonson case was where a conductor was run over and killed while attempting to make a coupling himself. The court held there could be no. recovery for the negligence of the engineer, by reason of the rule in the Collins Case, 2 Duv., 118; [87 Am. Dec., 486]. The death occurred, in the Edmonson Case, in October, 1890. It is contended that if the rule laid down in the Edmonson Case, and other cases to the same effect, were the law as to the
Section 241 of the Constitution reads: “Whenever the death of a person shall result from an injury inflicted by negligence or wrongful act, then, in every such case, damages may be recovered for such death from the corporation and persons so causing same.” There follows a provision as to who may prosecute an action to -recover. It is insisted 'that by the use of the term, “then, in every such case, damages may be recovered for such death, from the corporation and persons so causing same,” it is meant to provide that a recovery may be had for a death resulting from the negligence of a fellow servant, regardless of grade or degree of negligence.
In considering this section, it may be well to consider the condition of the law as laid down by this court at the time of the adoption of the Constitution.
Under section 1 of chapter 57 of the General Statutes, it had been held, as in the Collins Case, 2 Duv., 118; [87 Am. Dec., 486], that damages were not recoverable by an employe of a railroad for an injury inflicted by the negligence of a fellow servant. And a fellow servant was held to be a servant of the same master, in the same field of labor, and of an equal grade with the one injured. It was also held that no recovery could be had for the ordinary negligence of a superior servant of the same master engaged in the same field of labor.
Under section 3 of chapter 57 of the General Statutes, it had been held that no recovery could be had fob ..death unless the deceased left a widow or child.
The debates of the Constitutional Convention (pages 5749-5752) show that it was intended to
But, to be plain that this is the law as intended, the first Legislature that assembled after the adoption of the Constitution, and which contained many members of the convention, section 6 of the Kentucky Statutes was enacted. It provides: “Whenever the death of a person shall result from an injury inflicted by negligence or wrongful act, then in every such case damages may be recovered for such death from the person or persons, company or companies, corporation or corporations, their agents or servants causing the same, and when the act is willful or the negligence gross, punitive damages may be recovered and the action to recover spch damages shall be prosecuted by the personal representative of the deceased.”
This statute clearly provides that, where death is
It is insisted in the case at bar that, under the Constitution and the above statute, appellant has shown a right to recover. If this action was against the engineer whose alleged negligence caused the injury, counsel would be correct; but as to appellee company such is not the law, for the reason that, as between decedent and the engineer, the engineer did not represent the company.
If it be conceded that the engineer.was the equal in service with decedent, then as to decedent the engineer could not represent the common principal. The fact that decedent at the time was performing the duties of brakeman did not change his character or position as conductor. Although the brakeman, if injured , under the same circumstances, might have recovered of appellee, yet decedent can not, because as to him there was no agent of the company guilty, or charged to be guilty, of negligence.
The petition, as finally amended, therefore, in one of the alternative pleas, failed to state a cause of action, and was insufficient. For the same reason the petition as' first amended, as to the first paragraph alleging the negligence of the engineer, was insufficient; and the court, in sustaining demurrer thereto, in so far as it pleaded the negligence of the engineer, did not err. However, in the original petition, the second paragraph alleging negligence of servants of appellee, who had charge of the track at
For this error the judgment is reversed, and causo remanded, with directions to overrule the demurrer to the second paragraph of the original petition, and for further proceedings consistent herewith. Upon a return of the case, appellant will be permitted, if he so desires, to withdraw his last amended petition.
The whole court sat in this case.