Louisville & Nashville R. R. v. Adams' Administrator, 106 Ky. 859

Louisville & Nashville R. R. v. Adams' Administrator

106 Ky. 859 | Ky. Ct. App. | 1899

CHIEF JUSTICE HAZELRIGG

delivered, the opinión of the court.

Whilst coupling cars in the service of the appellant, the appellee’s intestate received injuries from which he died. This action, brought by his administrator to secure damages for his death, resulted in a verdict and judgment for $5,000; hence this appeal.

The evidence is abundant that the moving cars which *862were backed upon the standing, or dead one, for the purpose of effecting the coupling were moved back at an unusual speed and came upon the standing car “with a terrible crash,” as put by one witness, and with the “loudest noise” ever heard in such work, as said by another, who had lived in the vicinity for nearly twenty years, and had seen such work night and day. Others, who lived from seventy-five to two hundred and seventy-five yards away, -were “alarmed” at the noise of the collision.

The chief defense was the plea of contributory negligence on the part of the decedent. .The issues o|j this behalf, as well as on the whole case, were very lucidly submitted to the jury by the learned trial judge. The real points of the defense are thus submitted: “If you believe from the evidence in the case that (1) the deceased undertook to make a coupling between the moving and the dead cars without using a coupling stick, and that such omission of this stick was a want of ordinary care or prudence for his own safety; or (2) that in attempting to make the coupling the deceased stood with one foot between the rails, and that such position was a want of ordinary prudence for his own ’safety; or (3) that in attempting to make the coupling the decreased did so at a point of time when the cars were in motion, and that he knew or had reasonable grounds to know that this was more than ordinarily dangerous; or (4) that for the purpose of making the coupling the deceased entered between the cars from the left side of the train, when the entry from the left side was a want of ordinary prudence for his own safety, — then, on either of such states of fact, the deceased was guilty of ordinary neglect of means and opportunities for his own safety, ño, theréfore, you are further instructed that, although you may believe from the evidence that defendant’s en*863gineer was grossly negligent in the respects mentioned in the first instruction (that is, in moving the cars back at the unusual rate of speed), yet if you further believe from the evidence that the deceased was ordinarily negligent of his own safety in any or all of the respects set forth in this instruction, and that the injury to him would not have happened if he had not been, then you will find for the defendant, unless you further believe that the engineer knew, or might by the exercise of reasonable diligence have known, of the position and conduct of Adams, as herein set forth, in time, to have avoided running the cars against him by the use of such available means as were at hand at the time, in which latter state of -case you can not find for the defendant on the grounds of Adams’ negligent position or conduct.”

It seems to us that these instructions eoArered fully the grounds of the defense, and stated the case very favorably for the company.

It is contended that the engineer was not bound to exercise reasonable diligence to know the dangerous position of the brakernan; but have actual knowledge of it, and fail to use reasonable effort to arrest the danger, before a recovery can be had on this branch of the case. But, while this is the rule generally as to trespassers and wrongdoers, it does not apply to a case wffien the engineer is backing his train for the purpose of having a coupling- made. In that state of case, it is his duty to look out for the danger in his rear, and watch the movements of the brakernan, and use all reasonable care and diligence in ascertaining any danger in which the brakernan may be placed. L. & N. Railroad Co. v. Earl’s Adm’x, 94 Ky., 875, [22 S. W., 607],

We perceive no error in the case, and the judgment is therefore affirmed.