87 Ky. 327 | Ky. Ct. App. | 1888
delivered the opinion op the court.
The appellee, Robert S. Mitchell, while in the employ of the appellant as a brakeman, and when engaged in the hazardous work of coupling some freight cars in the presence of, and under the direction of the conductor, was caught by the wheel of one of them, and his ankle and foot so crushed that it had to be amputated. TIis theory as to the manner of the injury is, that after making the coupling, and before he had time to get from between the cars, there was a new movement of the train under the direction of the conductor, by which he was knocked down and injured. -The company, upon the other hand, claim that there was no new movement of the train; that it backed slowly and properly to the car that was to be coupled to it; that the appellee went
The company now object to the judgment of ten thousand dollars, that was rendered upon the special verdict, upon several grounds.
The petition, after setting forth the manner and extent of the injury, avers that “the said action of said defendant’s conductor in charge of said train, and the action of defendant in regard to said operating of said train, was negligent and careless, and the defendant was guilty of negligence, and the said injury to the plaintiff occurred by reason of the'negligence and want of reasonable care on the part of defendant, and without any fault of the plaintiff.”
The degree of the imputed negligence is not stated, at least in express language. Waiving the question whether this may not be done, and whether it is not done in this instance, by the statement of the manner of the injury, we are of the opinion that the use of the generic word “negligence” in the pleading, in an action of this character, is sufficient without averring its degree.
This is not an action under the statute for a killing by “willful” neglect. If it were, it would have been necessary, inasmuch as the statute creates and defines the injury, to allege that the negligence was willful; but it is one at common law for negligence. In such • a case, the degiee, whether willful, gross or ordinary,
In Abbott’s Trial Evidence, page 583: “Gross negligence may be proven under a general averment of negligence.”
Another writer uses this language: “The declaration must aver the negligence or default of the company ; but it need not describe the kind of negligence, or particular acts which constitute the default, or the names or positions of the servants by whose fault the injury was inflicted.” (Pierce on Railroads, page 393.)
Newman in his work on Pleading .and Practice, page 415, says, in substance, that where a statute creates and defines an injury by neglect, its particular degree must be averred in the language of the statute or in equivalent words; but that in other cases the general allegation of negligence will be sufficient, as it “in general includes gross as well as ordinary negligence.”
Many cases might be cited in support of these text-writers. Among them are Nolton v. Western Railroad Corporation, 15 N. Y., 444, and Turnpike Company v. Maupin, 79 Ky., 101.
The last-named case was for an injury sustained by reason of a defect in a bridge of the company, and the court in its opinion says: “ The allegation of negligence is sufficient to entitle the plaintiff to recover in an action like this for any degree of culpable negligence that may be established by the evidence.”
Why should not the general allegation of negli
There is some evidence that the injury to the appellee resulted from gross neglect; the pleading authorized its admission, and as its existence was necessary to a recovery, the question was properly submitted to the jury whether the injury was thus caused.
The company contends that the interrogatories submitted to the jury were suggestive, and calculated to induce responses favorable to the apjxellee; that the court improperly refused to let them say whether the injury resulted from an accident which could not have been guarded against by the exercise of ordinary prudence upon the part of the train men; that it failed to inform them that the burden rested upon the appellee not only to show the company’s neglect, but his own freedom from any negligence; that some of the material findings are unsupported by the evidence, and that the damages awarded are excessive, resxxlting in part at least from the improper admission of evidence that the appellee had a family.
The jury in answer to the interrogatories found that the appellee, when coupling the cars, was acting under the orders of the conductor; that when the coxxpling was made there was a momentary check of the train, but that it was in motion when the appellee was hurt, and that the conductor, by signal, caxised the train to move on before the appellee had reasonable time to get from between the cars • that the gross negligence
It is insisted for the company that the findings, that there was a new movement of the train; that the injury resulted from gross negligence upon the part of the conductor, and that the exercise of ordinary care by the appellee would not have averted it, are altogether unsustained by the evidence. Whether this is so, and whether the verdict is so excessive as to warrant the intervention of an appellate tribunal, are the main questions to be considered.
The special findings of a jury, like a general verdict, can not be disturbed upon the ground that they are against the weight of the evidence, unless they are flagrantly so.
The appellee testified, in substance, that by the direction of the conductor, and in his presence, he went between the cars to make the coupling; that after doing so, and before he had time to get out, he was injured by a new movement of the train. If this be true, the conductor was certainly chargeable with gross negligence. He was immediately present; he was controlling the train; he knew the appellee had gone between the cars by his orders to make the coupling, and that a new movement of the train would
The evidence fails to show that the negligence, which must be imputed to the company, was accompanied by any act of willfulness. The jury, however, found it to be gross; and this authorizes the finding of exemplary damages. (Railroad Company v. McCoy, 81 Ky., 403.)
The jury were, however, restricted by the court to those which are compensatory only; and of this the company can not, of course, complain. The amount allowed seems, large. It is so. The fact, however, that it appears high to us does not authorize a reversal. We are not acting as a jury, and it is only when
The evidence shows that the appellee has suffered beyond estimate. For weeks his life hung in the balance. He is a cripple for life ; doomed to hobble about during the balance of his days, disabled from earning a living, at least at his accustomed employment, if not altogether, and in large measure deprived of the enjoyment of life. In estimating the damages for all this, different minds may well arive at different results; and in view of the well established rule upon this subject the verdict of the jury cannot be disturbed upon the ground that it is excessive.
The interrogatories objected to are in form as follows :
“4. Did or not the conductor (Sterling), whilst the plaintiff was coupling the cars, and before he had reasonable time to complete the same and come from between the cars, cause, by order or signal, the train to start in motion, and thereby catch the plaintiff between the cars, and cause the injury to the latter?”
*339 “Answer. We of the jury say that the conductor did, by signal, cause the train to move on before the jdaintiff had reasonable time to come from between the cars.”
“ 5. Was or not the injury to the plaintiff caused by the negligence or want of care on the part of the conductor (Sterling) in controlling or directing the movements of the train at the time ? ”
“Answer. We of the jury say, yes it was.”
“ 5J. If they answer question five in the affirmative, then they will say whether such neglect on the part of the conductor was gross neglect or ordinary negligence?”
“Answer. We of the jury say it was gross negligence.”
“5f. Did or not the conductor (Sterling), at the time of plaintiff’s injury, fail to use that kind of care and caution which an ordinarily prudent and skillful person engaged in like business would have observed under similar circumstances ? ”
“Answer. We of the jury say, he did fail.”
“6. Could or not the plaintiff, by the use of ordinary care and prudence on his part at the time, have avoided said injury?”
“Answer. We of the jury say, he could not.”
“7. If the jury answer question No. 4 in the negative, question 5 in the affirmative, question 6 in the negative, and say in answer to question No. dj that said conductor was guilty of gross negligence, then they will consider, and say in answer to this question, what sum in damages, within that élaimed, will reasonably compensate plaintiff for the injuries sustained by him,*340 because of said negligence; the bodily and mental suffering (if any) resulting directly from said injuries, and the impairment of capacity (if any) to labor and enjoy life, resulting also from said injury. If, however, said questions 4, 5 and 6 are not answered as herein set forth, then this, the seventh question, need not be answered.
“Answer. We the jury find for the plaintiff in the sum of ten thousand dollars.”
It is urged that they pointed out to the jury how to find a verdict that would sustain a judgment for the appellee. It may be equally said that they informed the jury how to find, so as to authorize one for the oompany. As to the last interrogatory, it may be said that it would be difficult, if not impossible, to frame a hypothetical question so that a jury of ordinary intelligence would not know how to find, to authorize a judgment for the one party or the other.
Certainly it would be impossible to submit interrogatories of such a form that the attorneys could not point out to the jury how they desired them to answer them to authorize a judgment for their client. If such a thing were possible, the jury would be unable to act intelligently. We must presume that they hunt for the right and not the wrong; and in our opinion the interrogatories are not open to the objection that they are improperly leading and suggestive.
The court, by its instructions, properly defined what would constitute gross and ordinary negligence upon the part of the conductor, and what would be ordinary - care upon the part of the appellee; and the interrogatories must be read in the light of these instructions.
In the case of the L., C. & L. Railroad v. Mahoney, 7 Bush, 238, evidence that the injured party had a family was held to be competent. That was an action, however, under the statute, for a killing by willful neglect. In actions for injuries for neglect not based upon such a statute, and where compensatory damages only are allowable, the authorities are to some extent conflicting as to the competency of such evidence.
In the case of Winters v. Railroad Company, 39 Mo., 468, it was decided that it was competent to prove that the injured party had a family, not as a fact in itself authorizing damages, but as showing his condition and situation in life by way of estimating the damages done to him. Upon the other hand, this was denied in the case of the Railroad Company v. Powers, 74 Ill., 341, upon the ground that it would tend to unduly enhance the damages and beyond compensation ; that the only question is, how much has the plaintiff been damaged ; and if such evidence be admissible, then it would be equally proper to show that the wife was blind, or the daughter an invalid.
In the case now in hand the petition avers that the appellee has a family. It is specially pleaded.
It is held in some cases, as in Laing v. Colder, 8 Penn. St., 479, that matters not naturally attendant upon the act, but proper by way of special damage, as that the injured party is the head of a family, may be proven, if specially pleaded. Mr. Rorer, in his work or Railroads, volume 2, p. 1099, appears by the citation of authority to support this view.
It is not, however, necessary in this case to decide whether such evidence is competent in a case where an injury results from gross neglect, which authorizes exemplary damages, but which is unaccompanied by any act of willfulness or oppression, or whether it is admissible in support of such matter when specially pleaded, because, in this case, the jury were, by the seventh interrogatory, expressly restricted in estimating the damages to such sum as would “reasonably compensate plaintiff for the injuries sustained by him because of such negligence; the bodily and mental suffering (if any) restating directly from such injuries ; and the impairment of capacity (if ' any) to labor and enjoy life restating also from said injury”
We cannot presume they did not follow it; and if an erroneous step or instruction in a case be corrected by a subsequent instruction or otherwise, no ground for reversal exists.
Judgment affirmed.