90 Ky. 560 | Ky. Ct. App. | 1890
'DELIVERED THE OPINION OE THE COURT.
The action in this case seems to have been instituted for the purpose of recovering damages, not only for
In the case of Jordan’s Adm’r v. Cincinnati, &c., R. Co., 89 Ky., 40, and in numerous other cases, it lias been held that no recovery can be had for the loss of life where the person killed leaves no widow, child or children, and for that reason it is no doubt sought to recover for the mental and bodily suffering of the intestate prior to his death.
In the case of Cincinnati, &c., R. Co. v. Adams’ Adm’r, 11 Ky. Law Rep., 833, decided at the last term, it was held, in effect, that where one in the employment of a railroad company, while in the same grade of service, loses his life by the neglect of a co-employe in the same hand-car at the time the injury was sustained, that no cause of action exists for the loss of life, or any other injury caused by the one employe to the other. This and nothing more was decided in that case, the party causing the injury and the one killed being in the performance of the-same service.
Section 1 of chapter 57, General Statutes, provides, that “if the life of any person not in the employment of a railroad company shall be lost in this Commonwealth by reason of the negligence or carelessness of the proprietor or proprietors of any railroad, or by the unfitness or negligence or carelessness of their servants or agents, the personal representative of the person whose life is lost may institute suit, and recover damages in the same manner that the person himself might have done for any injury where death did not ensue.”
The appellee’s intestate was injured, as is alleged, by the negligence of the defendant in so operating its cars as to cause a lever, used by switchmen to shift the cars from one track to the other, to strike the intestate in the abdomen, causing his death. The intestate was in the employ of the company in the switch-yard of the defendant at the time of the injury, and it was his duty to protect rear cars in backing, or in going from the one track to the other. How he happened to be at the place where he received the injury does not appear, as the uncontradicted testimony shows that the rails of the one track did not need changing at the time in order to enable the cars to go upon another track. We shall assume that his action was in the discharge of his duty, and that the facts show when near the lever the train, moving back at the rate of three or four miles an hour, by spreading the rails, cansed the lever to strike the unfortunate
His brother gives, in detail, all that occurred at the time, making a plain, honest and truthful statement of what transpired, and the other employes make a like statement, and from the testimony we can not say that these employes are to blame in any manner for the death of their fellow-wórkman. The lever or its boxing may have been unlocked. The conductor may have been, as he was, engaged in loading scrap iron, and the engineer at the water-closet, still the train was moving slowly by those competent to manage it. The deceased saw it moving, made his way to the rear of the train, and when near the lever the injury, as stated, occurred. No one had any reason to believe that the machinery for shifting the cars was out of order, or that the intestate was in a position where he might be injured. If they saw his danger,
The instruction given, by which the jury was told that the administrator was entitled to compensation, for the loss of the intestate’s life, should have been refused. Nor should the jury have been told that the company was liable if those moving the train knew, or by ordinary attention could have known, the danger, because not authorized by the facts proven. There is no evidence showing that the train was improperly managed, or that those in charge of it could have, by either ordinary or extraordinary care, avoided the injury. We can not, of course, anticipate the testimony that will be offered on another trial, but this judgment must be reversed, and is remanded for a new trial in conformity with this opinion.