94 Ky. 368 | Ky. Ct. App. | 1893
delivered the opinion of the court.
The first paragraph of the appellee’s petition sought-damages of the appellant company, by reason of its. gross and willful neglect in crushing her intestate husband between two of its cars, and causing him great-pain, anguish, loss of time, &c. The second sought damages for the loss of his life, caused by the willful
The solution of the question depends on whether or not there were errors committed on the trial of the cause to the prejudice of'the company. If yea, then a new trial must be ordered; if nay, judgment for four thousand dollars must be entered.
From the testimony it appears that Earl was a brakeman in the service of the company. When the train reached Munfordville moving north, the engineer turned over the engine to the fireman. The conductor was also off the train. It was a freight train, and some switching had to be done. Earl got off the cars at Logston’s store, some eighty yards from the switch; the engine moved north with some box cars attached, towards and over the switch. There
It is insisted jn the first place that the defendant was entitled to a peremptory instruction because of the negligence of the deceased, but we fail to perceive
Secondly, it is urged that incompetent evidence was permitted to go to the jury prejudicial to the company.
Immediately after Earl fell from the ladder the conductor testified that he (Earl) said to him that “he had tried to get to the top of the car, but it caught him before he could do so.” Brashear was then recalled for the plaintiff, and proved that he was present all the time after Earl fell, and there was no such talk, but that Earl did say that the accident was caused by the fool fireman, &c. What Earl said as to how the injury occurred was first asked for and brought out by the company; and as all the talk took place within a few seconds, it was . evidently the same conversation, and if part was detailed all should be. Moreover, the expressions were immediately upon the heels of the occurrence — within a few seconds of it — and can fairly be said to form a part of the transaction.
Thirdly, the instructions are complained of because No. 1 authorizes a recovery from the evidence, and
It is said that No. 2 ‘‘assumes loss of time, pain and suffering, and then authorizes the jury to give punitive damages ‘if the negligence was willful.’ ” It is well settled that an uncontradicted fact may properly be assumed in an instruction, and the deceased confessedly did suffer as indicated. To the ■extent that the right of recovering punitive damages was based on the establishment of willful neglect, the instruction was too favorable to the defendant. It required the greatest degree of negligence when only gross negligence was sufficient to warrant the finding of such damages. (See L. & N, R. Co. v. Mitchell, 87 Ky., 332; L. & N. R. C. v. McCoy, 81 Ky, 411.)
Instruction No. 9 required the jury to find for the •defendant, if they believed that Earl, in the performance of his duty as brakeman, failed to properly set the car on the side track, and left it so as to injure him in the further discharge of his duty, “unless they further believe that the fireman in charge of the engine could, by reasonable diligence, have discovered his danger, and by the use of reasonable diligence averted the injury.” It is urged that the fireman owed no duty to Earl if guilty of contributory negligence, unless he became aware of the danger to him, and then, by the exercise of care, could
This is substantially the instruction complained of. In No. 7 the jury had been told that if they “shall believe from the evidence that Earl negligently and carelessly undertook to ride on the side of the car at the time he was injured, and by the use of ordinary care and diligence he could have discovered his danger in time to arrest the injury, then the law is for the defendant, and the jury should so find.”
Taking the instructions together, the modification of No. 9 referred to the danger to Earl in his placing the car on the side track. That was the subject matter of the instruction, and the concluding clause referred to that danger, and not to the peril Earl may have placed himself in by riding on the ladder, but if otherwise the instruction was right. In switching and handling cars the fireman must be diligent and wide awake to dangers in the rear as well as in
Lastly, it is urged that the court erred in limiting the time of counsel in their argument to twenty-five minutes. It will be observed that while there are-some twelve witnesses in the case, there is comparatively little conflict of testimony. The instructions are unusually simple and direct, and we do not think the court abused its discretion in this regard. Nor do we think the verdict excessive.
On the appeal of the company the judgment is affirmed, but reversed on the cross-appeal, and remanded with directions to enter judgment for four thousand dollars in conformity with the verdict of the jury.