139 Ky. 202 | Ky. Ct. App. | 1910
Opinion of the Court by
Affirming.
The appellant, George Logan, was struck by a car and knocked from a trestle near the mill of the Kentucky Barytes Company, one of his legs being fractured between the knee and foot, and the foot of the other leg badly crushed. The fractured leg had to be amputated just below the linee, and the foot of the other leg at the ankle joint.
Appellant’s injuries were received under the fol-1 owing circumstances: The railroad tracks of the Cincinnati, New Orleans & Texas Pacific Railway Company, and those of the Louisville & Atlantic Railroad Company, intersect at Nicholasville; at a distance of a half or three-fourths of a mile from the point of intersection, a spur track of considerable length runs from the main track of the Louisville & Atlantic Railroad Company to the mill of the Kentucky Barytes Company; the spur is used by the latter company in getting to its mill ears loaded with crude barytes brought to it over the lines of the two railroads mentioned for manufacturing the refined product, and for transporting over their lines ears loaded with the refined product of its mill. Cars loaded with barytes consigned to the Kentucky Barytes Company are left by the railroad companies standing on the spur Iraek near the mill of the former, and when it gets ready to unload the cars they are pushed along the spur track by its employes to the millshed, where they are emptied of their contents. On the 22d day'of
This action was brought by appellant against tbe Kentucky Barytes Company and tbe two railroad companies mentioned to recover damages for his injuries. At tbe conclusion of tbe appellant’s evidence, tbe appellees, Cincinnati, New Orleans & Texas Pacific Eailway Co., and tbe Louisville & Atlantic Eailroad Company, and their codefendant, Kentucky Barytes Company, asked a peremptory in
The peremptory instruction was granted because the trial court was of opinion that the failure of the appellees to repair the brake of the car, or to equip it with a proper brake, was not the proximate cause of appellant’s injuries, and in this conclusion we are constrained to concur, it may be conceded that appellees were negligent in delivering to the Kentucky Barytes Company the car with a defective brake, but they were not liable for the injuries received by appellant, as an employe of the Kentucky Barytes Company, from that company’s use of the car in-its defective condition, unless their negligence was the proximate cause of such injuries; and in order to establish proximate cause it was necessary that casual connection between appellees’ negligence and the injury should have been shown and that without such negligence the injury would not have been inflicted.
As well said in 29 Cyc. 492, 493: “To constitute proximate cause creating liability for negligence the injury must have been the natural and probable consequence of the negligent act. It is the cause which naturally produce's a given result. The negligence must be such 'that by the usual course of events would result in an injury unless independent moral agencies intervene in the' particular injury. But where' an event is followed in natural sequence by a
Another element of the doctrine in question is stated in the same volume, at page 496: “A prior and remote cause cannot be made the basis of an action if such remote cause did nothing more than furnish the condition, or give rise to the occasion by which the injury was made possible, if there intervened between such prior or remote cause and the iniury a distinct, successive, unrelated, efficient cause of the injury. If no danger existed in the condition except because of the independent cause, such condition was not the proximate cause. * * *” Thompson on Negligence, sec. 2; Cuff v. Newark & N. Y. R. R. Co., 35 N. J. Law, 17, 10 Am. Rep. 215; Watson on Damages for Personal Injuries, secs. 33-35; Fowlkes v. Southern Ry. Co., 96 Va: 742, 32 S. E. 464.
Tested by the principles stated, we do not think the facts of this case warrant a finding that appellant’s injury was the natural proximate consequence of appellees’ failure to provide the car in question with a reasonably safe brake, or that it ought to have been foreseen by them in the light of the attending
It was no.t made to appear from the evidence that the relation of employer and employe existed between appellees and appellant and there was also an absence of any contractual relation between them. It is patent, therefore, that appellees in failing to provide the car with a reasonably safe brake violated no duty they owed the appellant. It cannot fairly he contended that the car, though supplied with a defective brake, was an imminently dangerous instrument. On the contrary, unless put in motion, it was entirely harmless, and even when in motion was not necessarily dangerous. When left on the spur track its wheels were well chocked which rendered it immovable until the chocks were displaced. While it remained in that condition appellant ran no risk in going upon the trestle of the spur track or in performing the work of gathering the coal required of him by his employer, the Kentucky Barytes Company. The car was rendered dangerous by the act of Davis and House, other employes of that company, in removing the chocks and undertaking to remove {he car to the place for unloading it.
It was admitted by both Davis and House, in giving their testimony on the trial, that upon arriving at the car they discovered that the brake was defective and would not work; indeed, the presence of the chocks in front of the wheels advised them of that fact; but according to their further statements, they satisfied
These undisputed facts show that the car was left by appellees on the spur track of the Kentucky Barytes Company in an altogether safe condition, where it remained 24 hours and until turned loose by the servants of the Barytes Company, who permitted it to get beyond their control and injure appellant. In thus attempting to move the car the servants of the Barytes Company were guilty of negligence and such negligence was the efficient cause of appellant’s injuries. In other words, it was not on account of the defective brake that appellant received his injuries, but because of the manner in which the car was attempted to be moved by Wm. Davis and bis Assistant. As said in Mastin v. Levagood, 47 Kan. 36, 27 Pac. 122, 27 .Am. St. Rep. 277: “There is a marked distinction between an act of negligence imminently dangerous and one that is not so, the guilty party being liable in the former case to the party injured, whether there was any relation of contract between them or not, but not so in the latter case.”
It must be borne in mind that not only were appellant, and Davis, whose negligence and that of House,
Tbe case of Risques’ Admr v. Chesapeake & Ohio Ry. Co., 104 Va. 476, 51 S. E. 730, presents a state of facts very similar to those in tbe case at bar. Tbe railroad company furnished tbe Alleghany Ore & Iron Company cars with defective brakes, placing them on a side track to be moved by tbe ore and iron company and unloaded of freight belonging to it or loaded with its product. In tbe hauling of these cars by tbe ore and iron company tbe plaintiff’s intestate, who was one of its employes, was killed. On tbe evidence tbe trial court directed a finding for tbe defendant. On tbe appeal tbe higher court, in sustaining tbe action of tbe trial court in part, said: “Tbe plaintiff’s intestate was an employe of the Alleghany Ore & Iron Company. Tbe declaration shows that tbe cars were delivered by tbe railway company to tbe ore and iron company on a side track to be moved and either unloaded of freight belonging to tbe ore and iron company or loaded with tbe product of that com
A similar conclusion was reached by the Supreme Court of Kansas in the case of McCallion v. Missouri Pacific Ry. Co., 74 Kan. 785, 88 Pac. 50, in which the plaintiff, who had been injured by a defective car furnished his employer by the railway company, was refused a recovery upon the ground that as his employers had taken possession of the defective car at the time he was injured, under the allegations of the petition and the law of master and servant, the master was responsible to the servant, and its negligence, instead of that of the railway company in furnishing the defective car, was the proximate cause of the injury.
The doctrine announced in the cases supra, has received the approval of this court in more than one instance. In the case of Georgetown Telephone Co. v. McCullough’s Admr, 118 Ky. 182, 80 S. W. 782, 26 Ky. Law Rep. 72, 111 Am. St. Rep. 294, a carpenter by direction of the owner was making repairs on a building upon a shelf, in a wareroom in which the telephone eonlpany stored dynamite and other materials used in building and maintaining its lines. An assistant of the carpenter found .it necessary to
Counsel for appellant, in support of his contention that the ease should have gone to the jury, quote from the case of Louisville & Nashville R. R. Co. v. Freppon, 134 Ky. 650, 121 S. W. 456, which he insists is strongly in point. We do not think that case sustains his contention. The plaintiff therein, an employe of the Henderson Tobacco Company, was injured by the fall of a ear door in attempting to open it to unload the car which had been furnished by the railroad company and left at the place for unloading. No moving or other control of the car by the tobacco company was required; in fact,its employes had nothing to do with the car but to unload it. Besides, the car, by reason of the defect in the door, was' an inherently and imminently dangerous instrument, as the defect was one that could not be discovered by a casual or ordinary inspection on the part of the person injured. So, it was properly held in that case that the railroad company was liable for the plaintiff’s injuries as it had failed to keep the car in a reasonably safe condition and had not lost its control of it, and because it did not appear the plaintiff knew, or had reasonable ground to believe that the door would fall when he attempted to open it. The opinion differentiates the case from the
It is apparent from the above quotation that this court has approved the soundness of the conclusions expressed in the opinions in the Risque and Roddy Cases, and that those cases are, in fact and principle, so like the case at bar as to control its decision Owing to the already great length of the opinion wo will not discuss other cases in this jurisdiction cited by appellant’s counsel. It is deemed sufficient to say that they rest, in every instance, upon facts wholly unlike those of the case at bar, and do not conflict with the principles controlling it.
The defense set up by the answers of the appellees justified the action of the trial court in overruling
Wherefore the judgment is affirmed.