131 Ky. 665 | Ky. Ct. App. | 1909
Opinion of the Court by
Reversing.
Tinsley Stewart, who was a brakeman on appellant’s train, was killed at a point near Gravel Switch in Marion county, Kentucky. His administratrix instituted this action to recover damages on account of Ms death*. The jury awarded plaintiff damages in the sum of $-12,000, and the defendant appeals.
1. Plaintiff sought a recovery on the ground of the unsafe and dangerous condition of the track and roadbed at the place of the accident, and the excessive rate of speed of the train on which decedent was riding. The testimony of the plaintiff was to the effect that the train upon which decedent was brakeman consisted of an engine and about 20 cars. At the point of the accident the train was running from 40 to 50 miles an hour. "When the accident occurred, several of the oars in the middle of the train were derailed; the engine, with about 10 cars which remained on the track, proceeding on its way. The decedent was on one of the ears that was derailed. He was thrown to the ground, run over, and badly mangled, and died some two or three days later. The track at the place of the accident was in a defective and unsafe condition -for the passage of trains over it. There were from 100 to 150 yards of track that hadf no baila? t between the cross-ties. This ballast had been taken out about eight days before the wreck, preparatory to putting down new rails and cross-ties. There was some evidence that the life of the rails was gone. Every third cross-tie was rotten, and in such condition that it would not hold spikes. The rails were surface bent and kinked, and had high centers and low joints. The track would not stay in line, and was what is known in railroad parlance as a “swinging
2. At the conclusion of plaintiff’s evidence the defendant offered an answer pleading contributory negligence on the part of decedent. This plea was based on the fact that the proof developed that the train was equipped with a Sullivan safety valve, which was located about the middle of the train, the place occupied by the decedent at the time of the accident. It was contended by the defendant that it was the decedent’s duty, in case the train broke down ox1 the rate of speed became excessive, to apply this brake and stop1 the train, and that his failure to do so under the circumstances constituted contributory negligence which would prevent a recovery. In view of the well-known fact that the speed of the train is under control of the conductor or engineer, and that the defendant’s avowal did not show facts sufficient to bring to the notice of .decedent, either that the track was unsafe, or that the train had become derailed, thus producing such an emergency as to require decedent to apply the Sullivan safety valve, we can not say that the court abused' its discretion in refusing to allow the amended answer to be filed after plaintiff had concluded her evidence1.
3. We shall next consider the errors alleged to have been committed by the court in admitting and
It is contended that the court erred in permitting U. A. Stewart to testify as to the condition of the track 150 to 200 yards from the point of the accident. As there was no evidence definitely fixing the place of derailment, we are of the opinion that the evidence complained of Was admissible. It is further objected that this witness and others were permitted to testify to the fact that in putting down new rails previous to the time of the accident the new rails were much larger than the old ones, the former being what are known as “80-pound rails,” and the latter being 70-pound' rails. According to the plaintiff’s evidence the old rails, where the ballast had been taken out- between the cross-ties, were left in their original position. The portion of the track which had been renewed with new rails, new cross-ties, and ballast was
It is next objected that certain witnesses were permitted to testify to the speed of the train at points as much as 1% miles and 3 miles and'5 miles distant from the place where the wreck occurred. Counsel for appellee contends that this evidence was admissible because it was shown that much of the 5 miles, if not nearly all of it, was on a downgrade, and that there was no abatement of the speed as the train ran the 5 miles to the point where the wreck occurred; that it was further shown that G. A. Stewart, who testified to the speed of the train at a point 5 miles from the place of the wreck, also testified that when the train passed him it was at 11:50 o’clock; that at 12:05 he received' a phone message from Gravel Switch, from Mike1 Devers, informing him that the train had been wrecked and that Tinsley Stewart had been injured. In addition to this fact it was shown from Devers’ testimony that he sent the message seven or eight minutes after the wreck occurred. According to this testimony it was developed that the train had run the 5 miles in seven or eight minutes. As the speed of a train may be checked within a short distance, we are inclined to the opinion that evidence
Complaint is further .made that the court permitted plaintiff to prove by P. T. Porsey that an the afternoon -of the injury Scott .Whitehouse, a section foreman, addressing James Roller, the conductor, said: “This wreck is caused by your fast running here.” Complaint is also made that the court permitted James Minor to testify that the conductor, Roller, at the same time and place, said to Scott Whitehouse: ‘ ‘ This wreck was caused by your bad track here. ’ ’ It appears, however, that this evidence was given in rebuttal, and after the witnesses had been asked if they had made such statements at the time and place referred to. Furthermore, White-house testified for defendant that the track was in good condition, and it was safe for the trains to run over it at 80 to 90 miles an hour. Roller had also testified that he examined the track, and was unable to assign a cause for the derailment of the train. The court admonished the jury that such evidence was admissible only for the
Counsel for appellant complain of the ruling of the court in permitting Charles Graham, upon his redirect examination, to testify that the section gang took out the old rails and cross-ties after the wreck and put in new ones. It is a well-settled rule of law in this State that evidence of precautions taken or repairs made after an accident is. not admissible as evidence that the defendant was negligent in not having made the repairs or taken the precautions prior to the accident. L. & N. R. R. Co. v. Morton, 121 Ky. 398, 89 S. W. 243, 28 Ky. Law Rep. 355. Counsel for appellee contend, however, that the matters complained of were first brought out by defendant’s attorney. In this counsel are mistaken. Counsel for defendant brought out evidence of the purpose for which the subsequent repairs were made only to counteract the effect produced by plaintiff’s evidence that such repairs had been made. That being the ease, the evidence was of a very damaging character. With such evidence before the jury counsel might well have argued that the track must have been in a bad condition, else the repairs would not have been made. In such a state of case scarcely any other evidence of the unsafe condition of the track would be an admission that the repairs should have been made prior to the accident. We, therefore, conclude that the evidence complained of was very prejudicial to the substantial rights of the defendant, and should not. have been admitted by the court.
4. We shall next consider the alleged errors in the li ■
“(1) If you believe from the evidence in this case that the roadway, or any part of same, at the time and place of the injuries complained of to said Stewart, was in an unsafe condition for the passage of said train over same, and said unsafe condition was due to, or caused hy, the failure of defendant company’s employes, who were charged with the duty of keeping same in said reasonably safe condition, to use ordinary care to have same in such reasonably safe condition for the passage of said train over same, and said unsafe condition was known; or by the use of ordinary care could have been known, to them, and because of said unsafe condition aforesaid a portion of said train was thrown from or caused to leave said tracks and roadway, thereby inflicting injuries upon said Sltewart of which he died, you should find for the plaintiff; or, if you believe from the evidence that defendant’s employes in charge of the engine drawing said train upon which said Stewart was located at the time and place he received the injuries resulting in his death ran said ’ train at a too high and dangerous' or unsafe rate of speed over said roadway and track at said time and place, and because of said too high and dangerous or unsafe rate of speed over same a portion of said train was thrown from or caused to leave said track or roadway, thereby inflicting the injuries from which said Stewart thereafter died, you should find for the plaintiff; or, if you further believe from the evidence that a portion of said train was thrown from or caused to leave said track and roadway, because of both the unsafe condition of same as above set out, and of the too high and dan*676 gerous or iHisafe rate of speed of said train, as above set out, combined, then you will find for the plaintiff, and if you do not so believe, you will find for defendant.
“(2) If your finding be for the plaintiff upon any one or all of the three states of case set out in instruction No. 1, then you will find such a sum in compensatory damages as you believe from the evidence will reasonably compensate the estate of Tinsley Stew’art, deceased, for the destruction of his power to earn money, in any sum in your discretion not to exceed the sum of $30,000.
“(3) Ordinary care means, as used in these instructions, that degree of care which ordinarily prudent persons would exercise under like conditions and similar circumstances.
“(I) You are instructed that the happening of the accident, of itself, from which Tinsley Stewart lost bis life, cannot be taken as evidence of negligence upon the part of the defendant company, but may be considered in connection with the other evidence in the case as to whether the defendant was guilty of negligence or not, and if you believe from the evidence that the track, at the point where the oar or cars, or any of them, first left the track, and that the wreck occurred as a result thereof, was in a reasonably safe condition for the passage of trains such as the one that was wrecked, and that the accident did not happen either on account of said track not being in a. reasonably safe condition, or on account of the excessive and high rate of speed, but from cause, or cause?, other than above stated, then in that event it was the one of the risks incident to decedent’s employment, and for which his estate cannot recover, and you will find for the defendant. ’ ’
It is next insisted that instruction 2 is erroneous in fixing the measure of damages. Complaint is made of the use of the expression “in any sum in your discretion.” It is contended that this expression gave the jury to understand that they were not limited to compensate Stewart’s estate for the destruction of his power to earn money, but that they might award such further or additional sum as in their discretion they saw proper, and, this, too, without reference to, or being bound by, the evidence. We do not think, however, the instruction is susceptible of the construction placed upon it by counsel for appellant. The instruction plainly told the jury that in the event they found for the plaintiff they should find such a sum in compensatory damages as they believed from the evidence would reasonably compensate the estate of Tinsley Stewart, deceased, for the destruction of his power to earn money. The use of the language “in any sum in your discretion” did not give the jury unlimited discretion. The discretion was plainly limited to such a sum as would compensate the estate of Stewart for the destruction of his power to earn money. Furthermore the instruction did not authorize a finding without reference to- the evidence. It told the jury to “find such a sum in compensatory damages as you believe from the evidence,” etc. We, therefore, conclude that the instruction was not erroneous.
The defendant offered the following instructions •
“(X) You are instructed that Tinsley Stewart was an employe of the Louisville & Nashville Railroad Company at the time and place he received the injuries which resulted in his death, and before you*679 can find for plaintiff, either on the ground that the train was being negligently run at the time at a dangerous, excessive, or reckless rate of speed, or on the ground that defendant had negligently suffered and permitted the track or roadbed to become and remain in an unsafe condition, you must further believe that the negligence of defendant with respect to one or both of said matters was gross and not ordinary.
“ (Y) Although you may believe from the evidence that defendant was guilty of negligence in operating said train so far as its rate of speed was concerned, yet if you further believe from the evidence that the deceased, Tinsley Stewart, on the occasion of the injuries received by him, was himself guilty of negligence which contributed to the derailment of a portion of the train upon which he was riding at the time, and but for which negligence the derailment would not have occurred, you will in that event find for the defendant on the question of speed.”
It is contended that the court erred in refusing to give these instructions. The court did not err in refusing to give instruction X, for this was a death case, and proof of ordinary negligence was sufficient. C. N. O. & T. P. Ry. Co. v. Cook’s Adm’r, 113 Ky. 161, 67 S. W. 383, 23 Ky. Law Rep. 2410; Linck’s Adm’r v. L. & N. R. R. Co., 107 Ky. 370, 54 S. W. 184, 21 Ky. Law Rep. 1097. Having heretofore held that the court did not abuse its discretion in refusing to permit the defendant to file an amended answer pleading contributory negligence on the part of the deceased, it necessarily follows that the court did not err in refusing to give instruction Y, offered by the defendant, as that instruction contained no other defense than that of contributory negligence.
For the reasons given, the judgment is reversed, and cause remanded for a new trial consistent 'with thi& opinion.