127 Ky. 732 | Ky. Ct. App. | 1908
Opinion op the Court by
Reversing.
Appellee, who was a head hrakeman on one of appellant’s freight trains while riding in the engine, was seriously injured in a head-on collision between the engine in which he was riding and1 one of appellant’s work trains. The work train was on the main track on the time of the freight train, and although the engineer of the work train testified that he directed a hrakeman to flag the freight, and supposed he had done so, it developed that he had not, and the freight, running at a high rate of speed, had no notice that the work train was on the track until the engine was within a few feet of it, and when it was too late to stop or reduce the speed or avoid a collision. As a result of the collision, appellee was thrown under a large mass of wood and iron, and so fastened that he could not immediately be extricated. "While in this position, where he remained for about an hour, the wreck caught fire, and appellee believed, and, indeed, had good reason to believe, that he would be burned to'death before he could be rescued; but fortunately, before the fire reached him, he was removed from his perilous position, and, escaped with severe injuries to one of his feet and some other parts of his body. He alleged in his petition to recover damages that “the agents and servants of defendant, in charge of the trains and superior in authority to plaintiff, managed and operated the trains and their crews with such gross negligence and carelessness that they came together in a head-on collision,
We will consider the first, second, and third assignments of error together. It was the duty of the engineer and conductor in charge of the work train to know that proper measures had been taken to flag the freight or notify it that the work train was on the track. They knew the freight was due, and that they were on the main track on its time. Although the engineer testifies that he directed a brakeman to flag the freight, and supposed he had done so, his
This doctrine of assumed risk by the servant has been further extended by this court until now it is well established that a servant cannot recover from the master for injuries inflicted by' the negligence of a fellow servant in the same grade of employment' engaged in the same field of labor, and associated or working with the injured servant, however gross the negligence of the fellow servant may be. Hence, if appellee had been injured by the negligence of a fellow brakesman on the train he was working on, without any fault on the part of the conductor, or engineer, or other superior, or breach of duty on the part of the company, he could not recover in this action. In L., C. & R. Co. v. Cavens’ Adm’r, 9 Bush, 559, the proposition before us was under considerationby the court, and it was said: “It is well settled that where one enters into the service of another he assumes to run all the, ordinary risks pertaining to such service; and this means only that he cannot recover for any injury that his employer, by the exercise of ordinary care and prudence, could not provide against. And it is equally as well established that, where a number of persons contract to perform service for another, the employes not .being superior or subordinate the one to the other in its performance, and one receives an injury by the neglect of another in the discharge of his duty, they are regarded as substantially the agents of each other, and no recovery can be had against the employer. Public policy requires that, where the laborers are co-equals and engaged in laboring in the same field, or on the
But when the servant is injured by employes of the same master, who are not directly associated with him, and with whom he is not immediately employed, and whose qualifications for the place they occupy he has no means of knowing, and in whose selection he has no voice, and over whose conduct and actions he has no control, and against whose negligence and carelessness he cannot protect himself, he may recover damages from the master for injuries received through their negligence, whether it be ordinary or gross, and without any reference to the position or place the servant causing the injury holds. And so appellee, whose injuries were directly caused by the negligence of the employes on the work train, may recover from the company, without regard to wMch one of them was guilty of the neglect that resulted in his injuries. The distinction between the liability of the master for injuries to the servant, when the injury is caused by the neglect of those engaged
And subsequently this distinction was more clearly expressed and applied thus: In Kentucky Central Ry. Co. v. Ackley, 87 Ky. 278, 10 Ky. Law Rep. 170, 8 S. W. 691, 12 Am. St. Rep. 480, the action was brought for personal injuries received by Ackley, who was engineer upon a passenger train, resulting from a collision with a freight train of the company. It was contended by the company that, as the injuries were caused by the negligence of employes in the same grade of employment as the person injured, there could be no recovery. But the court, in rejecting this contention, quoted with approval the principle announced in L., C. & L. R. Co. v. Caven’s Adm’r, supra, saying: “It is argued in that case that the rule should be applied that when a number of persons contract to perform a service for another, the employes not being superior or subordinate to each other
In L. & N. R. R. Co. v. Lowe, 118 Ky. 260, 25 Ky. Law Rep. 2317, 80 S. W. 768, 65 L. R. A. 122, C., N. O. & T. P. Ry. Co. v. Hill’s Adm’r, 89 S. W. 523, 28 Ky. Law Rep. 530, and L. & N. R. R. Co. v. Hiltner, 56 S. W. 654, 21 Ky. Law Rep. 1826, the rule announced in the Collins, Cávens, and Ackley cases was followed. In the cases of L. & N. R. R. Co. v. Robinson, 4 Bush, 507; L. & N. R. R. Co. v. Rains, 23 S. W. 505, 15 Ky. Law Rep. 423, and Robinson v.
Nor did the court err in striking from the answer the defense that the brakeman on the work train was a fellow servant of appellee, and therefore the company was not responsible to appellee for his neglect.
Appellee was permitted to testify that, while he was pinioned in the debris of the wreck, he knew it was. on fire and was fearful that he would be burned to death before he could be extricated; and other witnesses were allowed to say that they saw the fire burning close to him. In our opinion it was eompe, tent to permit appellee to testify as to the mental anguish and pain that he suffered while he was fastened in the wreck. If he had not sustained any physical injury, he- could not recover at all for the mental suffering he endured, as was said in Morse v. C. & O. Ry. Co., 117 Ky. 11, 25 Ky. Law Rep. 1159, 77 S. W. 361: “Damages cannot be recovered for mental suffering alone in an action for personal injuries based on negligence, unaccompanied by some
It was also admissible for appellee, as well as those who- saw him under the wreck, to describe the surroundings and conditions that existed, so that the jury might know all the facts and circumstances of appellee’s situation when injured. The accuracy of the photographs was testified to by the person who took them, and they furnished to the jury a more
Although there was no error in the admission of evidence or the instructions given by the court, we feel constrained to reverse the judgment upon the ground that the verdict is excessive. If there was sufficient evidence to show appellee’s injuries were permanent, we would not interfere with the finding of the jury upon this point; but there is not. That he sustained severe injury, not only to his foot but other parts of his body, there is no doubt; but, whether they are permanent or not is another question. Appellee, in answer to the question, “Is your foot permanently injured or not?” answered, “I believe it is. ’ ’ Dr. Sorry, the only physician who testified for appellee, said that he had made only one examinatioiL of appellee’s foot, and that a few days before the trail. The material parts of bis evidence are as follows: “Q. Tell the character of his injuries from your examination, and whether or not you think it is permanent.- A. Yes, sir; I think it is. Q. Did you make an examination with the X-rays to ascertain whether or not the bones were sound? A. no, sir. Q. You predicate your opinion about the permanency of the injury upon the fact that it should turn out that the bone is diseased? A. I take it the bones were diseased from the fact of the time it has
For appellant the two physicians who treated appellee were introduced, and testified that, they made ah examination of appellee’s foot with the X-rays, and in answer to questions said: “Q. I will ask you whether any of the bone's of his foot or ankle or leg are broken or affected. A. No, sir; they are not. Q. Tell the jury how you know it? A. Well, simply by examination at the time of the accident, and while the wound was fresh. Q. Have you ever examined it with the X-rays? A. Yes, sir; examined it with the X-rays, and I also asked Dr. Nesbitt to examine it with them-. Q. Did both of you examine it with the X-rays? A. Yes, sir. .Q- Is there any injury at all to the bone? A. No, sir; there is not. Q. What was the nature of the wound, that causes it to be so long healing? A. It was a'flesh wound and considerable bruise; the muscles torn, and the skin considerably bruised, and a tear and laceration also.” These doctors also testified in substance and effect that his injuries were temporary. It will be observed that the physician who testified for appellee made only one examination, and that without using the X-rays, and his conclusion that the foot was permanently injured was based on the fact that in his opin
We are not aware of any case in which the court has sustained a verdict as large as this one unless the injuries were permanent. The fact that the negligence was gross, and that punitive damages were allowed, and that appellee was entitled to more than mere compensation for his mental and physical suffering, does not imply that a jury are at liberty, unrestrained, to award by way of punitive damages any amount, however large it may be. This court has the same power and discretion to set aside a verdict, when excessive, in cases involving punitive damages as it has where only compensation is recovered. In every ease, if the verdict appears to have been given under the influence of passion or prejudice, a new trial will be granted. L. & N. R. R. Co. v. Long, 94 Ky. 410, 15 Ky. Law Rep. 199, 22 S. W. 747; Standard Oil Co. v. Tierney, 92 Ky. 367, 13 Ky. Law Rep. 626, 17 S. W. 1025, 14 L. R. A. 677, 36 Am. St. Rep. 595. As was said by this court in Louisville Railway Co. v. Minogue, 90 Ky. 369, 12 Ky. Law Rep. 378, 14 S. W. 357, 29 Am. St. Rep. 378: “It is impossible to measure with anything like absolute certainty the amount of punitive damages proper in a case, or the extent of some of the elements of those which are compensatory. The opinion of a jury has been, and properly, no doubt, regarded as the best means of even a fair approximation, and every verdict should be treated prima facie as the result of honest judgment upon their part. They are the constitutional triors of the facts of the case, and courts should
It will readily be conceded that it is peculiarly within the province of the jury to fix the amount of damage that a person is entitled to for mental and physical suffering, and will also be agreed that there is no rule by which the amount that should be awarded can be measured. For these reasons this court has always been reluctant to interfere with the finding of a jury upon the question of damages, and especially is this true when the injury is permanent, or of such character as to disable the injured person from pursuing his usual occupation or employment, or one that will cause him to suffer serious pain probably through life. But, if appellee’s foot should be fully restored, and there is a complete recovery, and he is placed in the same physical condition as he was before the injury, it appears to us at first blush that the verdict is too large. The future effect of the injury should be shown with reasonable certainty to authorize damages upon the score of permanent injury.
For the error in the amount of damages, the judgment must be reversed, with directions for a new trial.