135 Ky. 462 | Ky. Ct. App. | 1909
Opinion of the Court by
Affirming.
The appellee, Smith, at Blount Springs, Ala., while on his way to the depot from which passengers got on and off trains, was caught between the bumpers of the cabooses on two trains on the siding between the depot and the passenger platform. Both of his hands were crushed so badly that his right hand had to be amputated and his left hand is practically useless. To recover damages for the injuries sustained he brought this action, and upon a trial before a jury was awarded $12,500.
A reversal is asked upon four grounds: First, that under the laws of Alabama the plaintiff was guilty of contributory negligence in endeavoring to pass be
The evidence upon all material points is conflicting but with the. weight of it on any issue we are not particularly concerned, as the jury have the exclusive right, in cases like this, to decide controverted questions of fact. Therefore, having in mind only the controlling facts, and without attempting to set out the testimony in detail, we may say that the evidence is, in substance, as follows: Blount Springs is a small village immediately on the. line of the appellant’s railroad, and at the time of the injuries complained of it was frequented by a number of people who went there to visit the springs in the neighborhood. The appellee, a native of Texas, arrived in Blount Springs for the first time on the morning of July 22, 1907, and spent the day in and around the hotel and the village. About 5:40 in the. afternoon he started on his way to .the passenger platform for the purpose of meeting a friend he was expecting on the northbound Decatur passenger train that was due to arrive about the time he went to the station. The railroad
At the time appellee started to go to this platform there were on the siding four trains. One of these trains, known as No. 12, was a. long freight, headed north, that went in on the south end of the siding, and pulled up until its caboose was opposite the depot and then stopped. Soon thereafter No. 21, known as the “water train,” consisting of an engine, two cars, and a caboose, backed in on the siding from the south end, and stopped with its caboose some 30 to 60 feet from the caboose of train No. 12 thereby leaving a space of that distance between the two cabooses immediately in front of the depot, through which persons going to and from the passenger train to the depot might pass. Shortly after the water train had backed in, a long freight train, known as No. 19, going south, also backed in on the south end of the siding, and stopped with its caboose some 40 to 80 feet from the engine of the water train. After this, passenger train No. 8, going north, also ran partially in on the south end of the siding, but could not go far enough to clear the main track on account of the freight trains. About the time that passenger train No. 8 went in on the siding, passenger train No. 5, going south, came up on the main track, and stopped in front of the depot to permit passengers to get on and off.
"With the four trains on the siding, and the spaces before mentioned that had been left between them,
Just as appellee, who stopped, looked, and listened to ascertain if the passage was safe, stepped on the siding, the water train suddenly backed, and he was caught between its caboose and the caboose, on train No. 19, which had never moved its position after going on the siding. The evidence is very satisfactory that when the water train by backing closed up the original space of 30 to 60 feet between it and train No. 19. to a distance of from 3 to 10 feet, it stopped for a few minutes, and it may be inferred from the testimony that the trainmen did not intend, at this .time, to run it any closer to the caboose of train No. 19, and that
At the moment appellee was injured the trainmen who were giving the signals that moved the water train and train No. 19, were standing between the siding and the main track, but before this, and when the passengers from No. 5 were being discharged and the signals to close the space were about to be given, these trainmen, and probably others, notified people to get out of the way; that the space would be closed. Whether or not any persons were on the rear platform of the caboose of the water train, or the caboose of train No. 12, when appellee was injured is sharply disputed; the evidence for the company being that one brakeman was on the rear platform of the water train caboose, and one brakeman on the rear platform of the caboose of train No. 12, while the evidence for the appellee is that there was no brakeman at that time on either of these cabooses. The evidence also conduces to show that, just as the cabooses came together one of the trainmen, and probably a spectator, holloed at appellee in an effort to warn him of his danger, but it was too late.
Prom this statement it may be summarized that there was evidence sufficient to sustain the verdict conducing to show: (1) That when the trains were put on the siding, and until passenger train No. 5 started, there was a space of from 30 to 60 feet in front of the depot between the cabooses, .left for the purpose of permitting persons to go to and from the depot to the passenger train; (2) that when pas
Upon these facts the court gave to the jury the following instructions:
“No. 1. The court instructs the jury that the law is for the plaintiff, and they should so find, unless they shall believe from the evidence .that, before the ■defendant moved its trains, or either of them, which 'were standing on the passing switch at Blount Springs, Ala., at the time mentioned in the petition
“No. 2. But if the defendant did give timely and reasonable notice, as mentioned in instruction No. 1, that the passway between the said trains was about to be closed by backing one or both of said trains, and did exercise ordinary care to prevent injury to the plaintiff from the moving train, the law is for the defendant, and so they should find.
“No. 3. It was the duty of the plaintiff, before he entered upon the passway between the said two trains, to exercise ordinary care for his own safety, and to stop and look and listen to ascertain whether he could cross the track without injury from the said trains; and, if he failed to discharge either of these duties, and by reason of such failure he helped to cause or bring about the injuries -of which he complains, and he would not have been injured but for his contributory negligence in that respect, then the law is for the defendant, and so they should find, even though you may believe from the evidence that the defendant was negligent in failing .to give notice- of the fact that the train was about to be backed to close the passageway, if such is the fact, unless you shall
“No. 4. If you find for the plaintiff, you should find in such a sum as will reasonably and fairly compensate him for. any pain and suffering, mental and physical, caused him by his injuries, and for any pain and suffering which it is reasonably certain from- the evidence he will endure in the future as a result of his injuries, and for any permanent reduction in his power to earn money directly resulting from his injuries ; and, if you shall believe from the evidence that his injuries were caused by the gross negligence of the defendant, then you may in your discretion find in such a further or additional sum as you may think right and proper under the evidence, and on -these instructions, not exceeding in all the sum of $50,000, the amount claimed in the petition. If you find for the defendant, you will say so, and no more.
“No. 5. Ordinary care means the degree of care usually observed by ordinarily careful and prudent persons under the same or similar circumstances. Negligence means a failure -to observe ordinary care. Gross negligence means a failure to observe slight care. Contributory negligence means a failure upon the part of the plaintiff, if he did so fail, to observe care for his own safety, as mentioned.in instruction No. 3, and by reason of such failure he helped to cause or bring about his injuries, and when but for such failure he would not have been injured.”
Under -the law of this state, as settled in more than one opinion of this court, the facts of this case authorized the trial court to instruct the jury as it did, and
Taking up, first, the question of contributory negligence:
The theory of the company is that at the time appellee went through the opening the space between the two cabooses was not over three feet, and that if the water train was not at that time moving,, it had only stopped a moment before, and appellee from his position could and should have known that the trains were closing up the space; that as there was then no passenger train at the platform, and the passenger train upon which appellee expected his friend to arrive was on the siding some distance off, appellee in
In Pannell v. Nashville, F. & S. R. Co., 97 Ala. 298, 12 South 236, the facts were as follows: Several parrallel tracks crossed streets in a town, and on one of these tracks cars had been placed for the purpose of being loaded and unloaded, but at the crossing a space of 15 or 20 feet was left between the cars for the use of .the public. The cars had been placed in this way on the day preceding the accident, and Pannell, the injured party, who resided near the crossing, was entirely familiar with the location of the. cars. On the day after the cars had been so placed, he passed through .this opening, but on his return in about 30 minutes the opening had been materially diminished by an engine that was moving the cars, and in attempting to pass through he was caught between the drawheads and crushed. At the time the. cars were-placed on the track they were not connected with any engine, nor in charge of any employe, and no notice that the company intended to move them was given until shortly before the accident, when an engine was attached to the cars, and they were shifted about. In the course of the opinion the court said: “Wlien Pannell crossed the track going west, the opening at the crossing was 15 or 20 or more feet, and the cars on either side were stationary. Everything about the
In L. & N. R. R. Co. v. Crawford, 89 Ala. 244, 8 South. 243, 244, 245, a watchman while in the discharge of his duties was injured by a switch engine pushing á box car. In announcing the general rule the court said: “It is culpable negligence to cross the track of a railroad at a highway crossing without looking in every direction that the rails run to ascertain whether a train is approaching. If a party rushes into danger which by ordinary care- he could have seen and avoided, no rule of law or'justice can be invoked to compensate him for any injury he may receive. He must take care, and so must the other party. * * * We- regard the question as settled in Alabama by our rulings cited above, and that a failure to employ the senses on approaching a railroad crossing, when such employment would insure safety, is as a matter of law contributory negligence, and a complete defense to a suit for injuries sustained by the negligent handling of a railroad train, unless such negligence was so reckless or wanton as to be in law the equivalent of wilful or intentional. * * * No man should put himself in peril; and, if he negligently does so, the duty of active effort to avert in
In East Tennessee, Virginia & Georgia R. Co. v. Kornegay, 92 Ala. 228, 9 South. 557, Kornegay was injured while on his way to a depot to see a person who was a passenger on an east-bound train that had just come in. This train stopped on the main track, and a west-bound train took the side track, and its engine was standing still across a dirt road. Kornegay passed by the side of the engine and walked parallel with the track, and then turned and stepped on the side track in the direction of the east-bound train, which was still standing on the main track. Just as Lis foot touched the crossing on the side track, he was knocked down by the engine of the west-bound train and injured.' The court said: ££It appears from Kornegay’s own testimony that he was guilty .of negligence proximately contrltorting to the injury. It is plain that he undertook to cross the railroad track without stopping or looking or listening to ascertain if a train was approaching. He says himself that he did not stop or look. When he passed the engine, it was standing still on a downgrade. It appeared from the testimony that the engine could not have been put in motion without making a noise, which the plaintiff must have heard if he had been listening. He was not in apparent danger until he turned and stepped on the side track. He was bound to look and listen before attempting to cross the track. His neglect of this duty avoids his right of recovery, in the absence
In each of these cases the rule is announced that the failure to stop and look and listen before crossing a railroad track is such contributory negligence as will defeat a recovery, in the absence of evidence showing that the company was guilty of reckless or wanton negligence. But in neither of them are the. facts similar to those upon which the appellee rests his case. If we should assume that the railroad company in Alabama owed no higher duty to passengers or persons occupying the relation of appellee than it does to travelers‘at a public crossing, we should nevertheless feel obliged to hold that under the Alabama rule the appellee was not guilty-of such contributory negligence as. would defeat a recovery. The evidence introduced in his behalf shows that he was not negligent or inattentive, but that, on the contrary, before, attempting to cross, he exercised ordinary care for his own safety by stopping and looking and listening. The appellee in attempting to. go to the passenger platform was not a trespasser. He had a right to go there; and, although the company did not owe him the high duty attaching to a passenger, it did owe him the duty of exercising ordinary care for his safety. Montgomery & Eufaula Ry. Co. v. Thompson, 77 Ala. 448, 54 Am. Rep. 72; Berry v. L. & N. R. Co., 109 Ky. 727, 60 S. W. 699, 22 Ky. Law Rep. 1410; C. & O. Ry. Co. v. Meyer, 119 S. W. 183; Hutchinson on Carriers (3d Ed.) Sec. 991; Thompson on Negligence, Sections 2685, 2686.
The fact that the train upon which he was expecting his friend was not then standing on the main track at the depot for the purpose of discharging
The duty of the company In this respect is not discharged until, or unless, it has given reasonably sufficient warning to the public having the right to use the passway that it is about to he closed; and whether or not it performed its duty in this particular was in this caso a question for the jury. Tested by the Alabama rule, the appellee was not guilty of such .contributory negligence as would defeat a recovery,
The next argument presented as grounds for reversal is that the court erred in instructing the jury that, if they believed appellee would not have been injured except for his contributory negligence, they should find for the company, “unless they further believe from the evidence that when he came in peril from the trains, the employes of the defendant in charge of the train could, by the exercise of ordinary care, have discovered his peril, and by ordinary care have prevented his injury.” The objection raised to this instruction is that there was no evidence upon which to base the qualifying clause relating to the discovery of the peril in which appellee was placed.
With this conflict in the evidence it was the duty of the court to submit to the jury the theory of each of the litigants, and to do this the court gave this instruction. If the company had exercised the degree of care required under the circumstances, the peril of appellee could have been discovered in time to prevent the injury, as the employes, if located where they should have been, could have warned appellee not to cross. This view of the law was expressed in Louisville Railway Company v. Hudgins, 124 Ky. 79, 98 S. W. 276, 30 Ky. Law Rep. 316, 7 L. R. A. (N. S.) 152, where it was said, in answer to a similar objection to a like instruction: “It was the duty of appellee when she started to cross the tracks to exercise ordinary care for her owh safety; but, although she failed to do this, and her failure may have contributed to such an extent to bring about the injury of which she complains that it would not have happened except for her failure to exercise this degree of care, this will not relieve the appellant of liability if the persons in charge of the car that struck her could, by the exercise of ordinary care, have discovered the peril
Did the court err in .allowing the jury to award punitive damages if they found the defendant guilty of gross negligence? A careful examination of the Alabama cases introduced in evidence by appellant fails to disclose that that court has ever considered the question -when punitive or exemplary damage may be awarded. The question of what constitutes gross negligence is presented in more than one decision, but it always came up in a discussion of the law of contributory negligence, and when the court was indicating the character of negligence on the part of the defendant that would authorize a recovery by the plaintiff notwithstanding he was guilty of negligence. If the Alabama court had defined the class of cases in which punitive damages might be allowed, and the character of negligence that would authorize a jury -to award it, we would fee-1 bound to follow its ruling, although it might not conform to our divisions on the subject, as the measure of’damages recoverable under the law of the place where the injury occurred must control.
Without again stating the facts, it is sufficient to say there was ample evidence that the appellant failed to exercise the slightest degree of care for the safety of appellee, and that he was injured by its reckless disregard of the duty it owed him.. Nor is the instruction upon this subject open to meritorious criticism. It told the jury that they might in their discretion allow punitive damages. The argument that the words “or may not,” after the words “then you may,” should have been inserted is entirely too technical to be seriously considered; nor is it sustain
But, aside from all this, it is apparent that the jury did not award appellee more than fair compensation. At the time of his injury he was 44 years of age, a strong vigorous man of good health and industrious habits, in the prime of life and usefulness, earning by his labor and brains an annual income of as much as $2,000. • But now he is virtually a physical wreck. One hand is gone; the other is useless. He cannot follow any wage-earning occupation or business in which the hand is an essential member of the body — and there are few in which it is not. So that, taking into consideration his age, physical condition, and earning capacity, it cannot be said that
The contention that the instructions are involved and difficult to understand is not well founded. They presented to the jury the law of the case in simple and concise language.
Nor did the court fail in the instructions to submit appellant’s defense. It was fully set out in instruction No. 3.
A careful examination of the record and the reasons urged for reversal convince' us that no substantial, error was committed to the prejudice of the appellant, and the judgment of the lower court is affirmed.