172 Ky. 436 | Ky. Ct. App. | 1916
Opinion of the Court by
Reversing.
These two suits grew out of the same accident.. They were heard together in the lower court, and will be disposed of here in one opinion.
Marshall Long’, a boy 17 years old, was employed as a section hand by the Louisville & Nashville Railroad Co. At the time of his injury he was a member of a squad working on the right-of-way, in a steep, deep cut, near Ganey’s bridge, under the direction of Mike Rice, the section foreman, or Estill Grimes, the assistant foreman. There is a conflict in the testimony as to whether Rice or Grimes was in command at the time Long was injured.
Long- was cutting weeds with a scythe, and/ while standing in the ditch by the side of the track and about five feet from the nearest rail of the 'track, one of appellant ’s trains passed him, about four o’clock in the afternoon. He weis struck in the eye by a -sliver of steel thrown from the wheels of the cars. The injury resulted in the loss of his right eye. He had theretofore practically lost the use of his left eye. He brought his action for the loss of his eye, and for pain and suffering, while his father, J. B. Long, brought another action, for the loss of the services of his infant sdn, due to the same accident. The son recovered a verdict for $2,000.00, and the father recovered a verdict for $500.00. The company appeals in each case.
The petitions are substantially alike, and allege that the company failed to furnish and provide the plaintiff, Marshall Long, with a reasonably safe place and method in which to do his work, and failed to warn or instruct him of the danger incident to doing the work required of him by remaining close to the train as it passed.
The plaintiffs’ proof was to the effect that the boy was injured because he was required by the foreman to continue cutting weeds while the train was passing, in the cut, and for that reason he was unable to withdraw into a place of safety.
At the time he was injured, the boy had been working for the company as a section hand about four months, 'and had been engaged in cutting grass and weeds from the right-of-way, some four or five days. At the time of his injury he was working in the cut above referred to, which was quite steep and from twelve to twenty feet deep; and, as the train approached the cut it came around a curve which caused the wheels of the cars • to grind upon the'rails, and throw off imperceptible small particles or slivers of iron and steel.
It will thus be seen that the plaintiff’s cause of action is rested upon the fact that he was put to work at a dangerous place upon the right-of-way, without being warned of the danger by the foreman.
The dangerous place was not caused by any defect in the management of the train, or in the construction of the track, but by the passing of the train so near the boy as caused his eye to be struck by a sliver of steel thrown off by the action of the wheels of the car against the rail. This was a danger which the boy did not know, but which the company’s foreman did know, according to the allegations of the petition. These facts, if true, made it an unsafe place for the boy to work.
It has been established by many witnesses, including t those of the appellant as well as those for the appellee/ that passing trains throw off fine particles of steel, and
Furthermore, sections 120 and 130 of the Civil Code read as follows:
“129. No variance between pleadings and proof is material, which does not mislead a party, to his prejudice, in maintaining his action or defense upon the merits. A party who claims to have been so misled must show that fact to the satisfaction of the court; and, thereupon, the court may order the pleading to be amended, upon such terms as may be just.
“130. If such variance be not material, the court may direct the fact to be found according to the evidence, and may order an immediate amendment.”
The defendant having failed to object or claim, in the trial court, that it was misled by the alleged' variance, the complaint made for the first time upon the appeal, comes too late.
Furthermore, we fail to see that there was any material variance between the petition and the proof; and, as there was proof upon either side of the question of fact, appellant’s motion for a peremptory instruction was properly overruled.
Appellant insists that this testimony was hearsay, and should not have been admitted. Unquestionably, this testimony was hearsay, and, therefore, incompetent; and, no doubt it would have been excluded had there been an objection to it. But, as there was no objection to it, the appellant is not in a position to complain of its admission.
The first instruction made it the duty of the company to use ordinary care to furnish the boy a reasonably safe place in which to work, and. authorized a recovery for the plaintiff if the place- was not reasonably safe while the
This instruction is criticised upon the ground that it assumed, as a matter of law, that the company required the boy to continue at work cutting grass from the right-of-way while the train was passing, instead of submitting that question to the jury as an issue of fact.
While we see no substantial error in the first instruction, we think it was unnecessary, under the'issues and the proof. The plaintiff’s case, as above stated, rested solely upon the fact that he was required to work in a dangerous place, without being warned of the unknown danger, and that issue was fully submitted under the second instruction. There was really no place for the first instruction; and, upon another trial it should be omitted. Trosper Coal Co. v. Crawford, 152 Ky. 215.
“The court instructs the jury that if they believe from the evidence, that at the time of the injury complained of to the plaintiff, he did not understand and appreciate the danger of fragments of steel or iron flying in his eyes from the passing of the train mentioned in the evidence, through inexperience or from any other cause, and that the defendant, its officers or agents superior in authority to plaintiff knew this, or by the exercise of ordinary care ought to have known it, it was their duty to have warned and instructed him of the danger, if any, as often as may have been reasonably necessary to make him fully understand and appreciate the danger, if any, and if the jury believe from the evidence that the defendant, its officers or agents superior in authority to plaintiff failed to so warn or instruct him of the danger, if any, and that plaintiff whilst exercising ordinary care for his own safety was injured by a fragment of metal flying in his eye, thrown from the passing train mentioned in the evidence, then the law is for the plaintiff and the jury should so find; and, unless you so believe you ought to, find for the defendant, unless you find for the plaintiff under instruction No. 1.”
There is one false note in this instruction. It properly placed upon the company’s officers or agents superior in authority to plaintiff, in case they knew of his danger, the duty to warn and instruct the boy of his danger; but in requiring them to do so “as often as may have been
It is insisted that this instruction is erroneous because it failed to advise the jury that the boy was not required to use the same degree of care as would be required of an adult section hand.
We see no merit in this criticism, and if there had been, the appellant is npt in a position to complain thereof, since the seventh and eleventh instructions given upon the motion of appellant placed upon the boy the same degree of accountability as would be required of an adult of similar intelligence.
Under a fair interpretation of this instruction, the jury was authorized to find for the boy for any permanent impairment of his power to earn money in the future, when, under the law, the boy’s right to recover upon this ground should have been limited to the period subsequent to the day he should become .twenty-one years of age.
Under the fifth instruction the jury was properly instructed that the father might recover damages for the
Appellee insists, however, that since the two cases were tried together, and instructions 4 and 5 are to be read together and applied by the same jury, they would, of course, understand that in case they should find for the father for the period covered by the son’s minority, they would understand that they were not to find for the son-for the same period.
The instruction was, however, clearly erroneous, and we are not prepared to say that it was not prejudicial in this case. While the argument for the appellee as above outlined is plausible, it is not probable that the jury would be able, in applying tlie two instructions, to make the distinction made by able counsel, if the cases had been tried separately, the instruction given in the boy’s case would require a reversal; and, the fact that the cases were tried together doés not seem to be a sufficient reason to justify us in treating this as an unprejudicial error.. The two instructions should have clearly and distinctly limited the recovery of both the father and the son, as above indicated, and the failure to do so constituted a reversible error.
After authorizing a recovery on behalf of the father for the impairment of his son’s power to earn money during the period of his minority, the fifth instruction also authorized the father, to recover such further sum as the 'jury might believe from the evidence he had incurred in the way of medical treatment, if any, of his infant son, not to exceed altogether the sum of $2,000.00. The father’s petition claimed $1,690.00 for the loss of his son’s services; $201.00 for medical treatment; and closed with a prayer for $2,000.00 damages.
In the Watkins ease it was held to. be error for the court to instruct the jury that if they should find for the plaintiff they should fix the amount of recovery in such a sum as would compensate him, without limiting the jury to the sum stated in the petition as constituting plaintiff’s damage for the item covered by the instruction. See also South Covington & Cin. Ry. Co. v. Raymer, 132 Ky. 190.
By way of reply, however, appellee insists that since both the father and the doctor testified that the doctor’s bill was $201.00, and there was no other evidence on the subject, and no evidence of any other expense, the instruction could not have been prejudicial.
While this instruction was technically erroneous, and may not when read as a whole, have been prejudicial to the appellant, it will, upon another trial, be corrected so as to conform to the established rule upon this subject.
There was, and could be, no just complaint upon the part of the appellant of these instructions; we merely mention them as a part of the history of the case, and to
For the errors indicated, the judgment is reversed in each case, and the cases remanded for a new trial.