117 Ky. 624 | Ky. Ct. App. | 1904
Opinion op the court by
Affirming.
John A. Ewing, a brakeman on one of appellant’s freight trains, was fatally injured in the following manner: A previous train had some fifteen hours before cut off and left ten or twelve cars on a siding at Lagrange. Of these, three were to be taken out by Ewing’s train and put into it, to be carried on. Ewing, as was his duty as brakeman, shifted the switch for the siding, and preceded the engine— which was pushing three cars ahead of it — to the string of cars first mentioned, where he uncoupled the two to be taken out, coupled them to the front of the cars' attached to his engine, and gave the signal to back out, which was obeyed. He rode the cars out to the switch, where he dismounted, and threw the switch so as to run the engine and cars forward on the right track. As the cars came forward, being pushed by the engine, he mounted the side ladder on the corner of the front car, .signaling to the fireman to
The negligence complained of,. and because of which it is charged that Ewing was injured, was in leaving the cars on the siding without their brakes being set so as to prevent their rolling out by gravity and of their own momentum: It is charged, first, that this negligence occurred when the conductor and crew of the train who- set those cars in there failed to properly set the brakes on them so as to prevent their rolling out; and, second, that Ewing’s conductor was negligent in not seeing personally that the brakes were set on the remaining cars so as to keep them stationary. The defenses are that the injury was caused by Ewing’s contributory negligence, and by the negligence of a fellow servant, another brakeman of his crew, named Sexton, who it was charged should have set the brakes, but failed to do it. The court’s instructions clearly and in unobjectionable terms submitted to the jury those defenses. It is furthermore contended — and this is the main point made on this appeal— that the negligence, if any, of the crew or conductor who set the cars on the siding, without putting on‘sufficient brakes, was not the proximate and efficient cause of the, injury. Whether Ewing’s conductor was negligent in failing to see that the other cars were properly braked was' submitted to the jury, as was the negligence of any other servant of the company in that matter, other than the brakeman Sexton. (It was not claimed that any other fellow brakeman had
It is urged by appellant that no instruction should have been given submitting the question of the first conductor’s negligence. This contention is based solely upon the ground that that negligence, even if found to exist, was not the proximate cause of the injury. So the question is at last, was the negligence of the conductor of the other train so remote as that, as a matter of law, the court should have instructed the jury that they could not consider it? If there be doubt as to whether the injury was the result of a particular act or of another closer connected, or if there be doubt whether there was or was not an intervening and independent agency between the original act and the injury, that is, where different minds may draw different conclusions from the fact, the question whether, the injury is the proximate result of the causes complained of, we say unhesitatingly, should be submitted to the jury for determination. On the other hand, if the facts be admitted or not 'in dispute, and if they show so clearly that reasonable minds could not well disagree about it, that but for the intervening independent agency the injury would not have happened, thel question is one of law. That there must be a casual connection between the negligence complained of and the injury, a natural and continuous sequence, not dependent upon any new and im
As to whether the injury to Ewing was the result proximatelyof the acts of negligence sued for was expressly submitted to the jury in this case. But it is insisted that, on this particular issue, there is no dispute as to the facts; that taking appellee’s theory of the cause of the injury, so far as the acts of the first train’s crew are concerned, it is a demonstrable proposition, to which! the conclusion is irresistibly drawn, that, but for the intervening and independent agency of the action of the engine in jolting the cars (which is not claimed to have been negligent) and of Ewing’s loosening the brakes oñ the two front ones, the original act of negligence in not braking all the ears would have been barren. Aside from Ewing’s letting off the brakes,
Whether Ewing should have examined the remaining cars before leaving them, so as to know whether they were safely secured, or whether he had the right to rely upon the presumption that those who placed them there had discharged that duty,' was involved necessarily in the question of his contributory negligence submitted to the jury — whether he had acted within that caution which an ordinarily prudent person similarly situated would have observed for his own safety. We can not say as a matter of law that he had not the right to assume that the other servants who had gone before him had done their duties. If every operative in railroad service should be compelled to personally verify the proper discharge of all duties of all other servants and officers who had acted before him, it would be impossible to continue the business with any degree of dispatch. While he must use ordinary care and observation and judgment in keeping himself informed as to conditions of his train and service, he has the right to assume that things not obviously insecure have been properly arranged by those whose duty it was to put them in proper condition.
We see no error in the record. Judgment affirmed, with damages.