162 Ky. 14 | Ky. Ct. App. | 1914
Opinion op the Court by
Reversing.
Eugene Heinig was an engineer in the employ of the defendant, Louisville & Nashville Railroad Company. Oil December 27, 1911, he was killed in a wreck-. His widow and administratrix:, Catherine D. Heinig, brought this action against defendant to recover damages for his death. The jury awarded damages in the sum of $21,000, which sum was apportioned equally to the widow and six children of the decedent. The defendant appeals.
At the timé of the accident Heinig was the engineer in charge of northbound passenger train No. 32, which collided with southbound ' passenger train No. 33 at Savoy.
The trial court gave to the- jury 19 instructions, in which were submitted for its determination the following grounds of negligence:
1. The meeting point at Savoy was. changed without notice to the decedent.
2. Failure to provide sufficient rules, orders, methods and appliances to make the meeting point of the two trains reasonably safe.
3. Failure of the employes of southbound train No-. 33 to change the switch in time to prevent the collision.
4. The failure of the conductor to angle-cock the train after the failure of Heinig to indicate by proper signal that he had the meeting point in mind, and intended to stop there.
5. Failure of defendant to adopt and have ip use the block signal system.
In the event it found for plaintiff, the jury was told to state in its verdict under which instruction or instructions its finding was made. In response to this direction, the jury stated that its finding was under instructions Nos. 5, 6 and 12. Instruction No. 5 submitted
The petition also charged that defendant was negligent in permitting the trains to meet at Savoy, because of the topographical conditions there existing; and defendant was further negligent because those in charge of the waiting train No. 33 permitted it to stop too near the switch. These grounds of negligence, however, were not submitted to the jury.
Savoy is a telegraph station about a mile from Wil-liamsburg. There is one switch north of Savoy. About' 100 feet south of Savoy is the Pine Mountain Spur main. There are two other switches, Nos. 1 and 2, south of the station next to Pine Mountain Spur. Beginning a few feet south of the station, and extending for a distance of several hundred feet, was another track which had a capacity of about 50 cars. The main track curves at a point a short distance below the south switch of this passing track. There are also some trees and a large embankment near the switch point. Prior to November 29,1911, the Pine Mountain Spur was used as a passing track at Savoy. On that date the trainmaster issued Bulletin Board Order No. 277, the material parts of which are as follows:
“All concerned:—
“Effective at Noon Monday, December 4th, the tracks at Savoy will be used as follows:
“The track south of depot as a passing siding. This track has a capacity of 50 cars, and derail will be removed from this track.
“Track north of depot and parallel with main line, as a northbound storage, having a capacity of 32 cars.
“Track No. 1, next to Pine Mountain main, as a storage for Pine Mountain cars, this track having a capacity of 49 cars.
“Track No. 2, which is parallel with No. 1, as a storage for southbound loads; capacity 49 cars.
“Derailers have been placed at clearance point on north end of Nos. 1 and 2 tracks. ”
It further appears from the rules of the company that, while both conductors and engineers are responsible for the safety of their .trains, and must take every precaution for their protection, the general direction and government of the train is vested in the conductor. He is held responsible for its safe and proper conduct, and the men employed on the train are required to yield willing obedience to his proper orders.
Another rule provides:
“Conductors will place themselves in position to hear these signals, and, failing to clearly hear and understand them, must stop their trains.
“The proper place for enginemen to sound station whistle (Rule 14 (m) is at a point one-half mile from the head block of first passing siding switch.”
There was evidence tending to show that the decedent did not blow either the station whistle or the short whistle for the purpose of indicating that he was approaching a meeting point. There was also evidence to the effect that the conductor did not attempt to angle-cock the train until just about the time of the collision.
Plaintiff also introduced a number of witnesses who testified to the value of the block signal system as a safety device. This system was in use by a number of roads, and if it had not rendered collisions practically impossible, it had materially reduced the number of accidents of that kind. This system is used principally in the North. It is in use on certain portions of defendant’s lines. Perhaps only about ten per cent of the roads of the South use this system.
Though the jury based its verdict on the failure of' the defendant to equip its road with the block signal system, and the failure of the conductor to angle-cock the train, we deem it necessary, in view of another trial, briefly to discuss the other grounds of negligence relied on.
1. With respect to the claim that the meeting point at Savoy was changed without notice to decedent, and that defendant was negligent in not having sufficient rules to give notice to decedent of the change in the meeting point, the following facts appear: The bulletin making the change in the passing track at Savoy was posted at several places. Every witness who testified saw it at some one of these places. At certain of these places it was seen after the accident occurred. The evidence leaves no doubt that, if the decedent had looked, he, too, would have seen the bulletin. It is no answer to this proposition to say that his conduct shows that he did
For the same reason there is no merit in the contention that the waiting train stopped too near the switch. It was sufficiently far from the switch to clear an approaching train had it taken the siding, and its employes had the right to anticipate that proper notice of the other train’s approach would be given in time to enable them to change the switch. The waiting train was on the main track at a reasonable distance from the switch. Even if it had been a little further away, it is doubtful if the accident could have been prevented.
3. Another ground of negligence relied on is that, because of its topographical conditions, Savoy should not have been selected as the meeting place for trains. This position is based on certain evidence to the effect that the switch point of the passing track was near a curve and was obscured to a certain extent by an embankment and trees. We are unable to perceive how defendant was negligent in the respect indicated'. On a single-track road it certainly conduces to safety to have as many passing tracks as possible. In rough country, where there are necessarily embankments and trees, it
4. By instruction No. 6 the jury were told, in substance, that if they believed from the evidence that for a reasonable time prior to the collision in question the block signal system was in general use on railroads in the United States of like character, in respect to construction and amount of traffic, as that portion of defendant’s road complained of, and they further believed that said system was, and was recognized by said railroads and railroads generally, as a device reasonably calculated to prevent collisions of the kind in question, and was used by such railroads for such purpose, and that the use of such block signal at the time and place in question would have prevented the death of Heinig, and that the exercise of ordinary care on the part of defendant for the reasonable safety of its employes in charge of said two trains required the úse of said block signals at the time and place in question, and if they further believe that defendant knew, or by the exercise of ordinary care could have known, of such fact a reasonable time before the collision in question, and that defendant’s failure to have such block signals, either in whole or in part, caused the collision or the death of Heinig, they should find for the plaintiff. By instrue-. tion No. 7 the jury were told, in substance, that if they. believed from the evidence that the exercise of ordinary care required the defendant to have block signals, and’: that the absence of such signals increased the danger of ■ the meeting and passing of said two trains, and if they: further believed from the evidence that the increased danger, by reason of the absence of such signals, was
5. The next question concerns the conductor’s failure to angle-cock the train, and the question whether or not, if he was negligent in this respect, defendant is liable. In the recent case of Pennsylvania Co. v. Cole, 214 Fed., 948, the plaintiff was a rear brakeman and flagman on defendant’s eastbound freight train. While his train was standing, about midnight, on the main track to take water, it was run into from the rear by another train consisting of an engine and caboose. The caboose in which plaintiff was asleep was set on fire and plaintiff
“But it is strongly pressed upon us that plaintiff’s negligence in going to sleep in the caboose while on duty, and thus in failing to flag the following train, was negligence so gross and so proximate in its effect as to preclude all right of recovery. The danger to the interests of the traveling public from failure to enforce such rule is strongly urged. There can be no doubt, at the common law, such would have been the effect of plaintiff’s alleged negligence; but the Employers’Liability Act expressly abrogates the common-law rule under which action was barred by the negligence of the plaintiff proximately contributing to the accident and substitutes therefor the rule of comparative negligence. Under this act, no degree of negligence on the part of the plaintiff, however gross or proximate, can, as a matter of law, bar recovery; for, as. said in Norfolk & W. Ry.Co. v. Earnest, 229 U. S., 114, 122, 33 Sup. Ct., 654 (57 L. Ed., 1096), the direction that the diminution shall be ‘in proportion to the amount of negligence attributable to such employe’ means that:
“ ‘Where the causal negligence is partly attributable to him and partly to the carrier, he shall not recover full damages, but only a proportional amount bearing the same relation to the full amount as the negligence attributable to the carrier bears to the entire negligence attributable to both.’ ”
In the case of Grand Trunk W. R. Co. v. Lindsay, 233 U. S., 42, the U. S. Supreme Court, speaking through Mr. Chief Justice White, quoted with approval the following language of the Circuit Court of Appeals of the Seventh Circuit:
“If, under the Employers’ Liability Act, plaintiff’s negligence contributing with defendant’s negligence to the production of the injury, does not defeat the cause of action, but only lessens the damages, and, if the cause of action is established by showing that the injury resulted ‘in whole or in part’ from defend
In view of the above decisions it cannot be said that the decedent’s negligence, even though the proximate cause of his death, was the sole cause of his death, if, as a matter of fact, the conductor, notwithstanding decedent’s negligence, could, in the exercise of ordinary care, have known that decedent had failed to give the meeting point whistle, or had failed to take steps to stop his train, and have stopped the train in time to avoid the collision. Rule 90, above set forth, imposes on the conductor the duty of placing himself in a position to hear the meeting point signals, and, failing to clearly hear and understand them, to stop his train. All the witnesses agree that it was the conductor’s duty, when the decedent failed to give the meeting point' signal, and failed to slacken the speed of his train, to apply the angle-cock and stop the train. We are not disposed to take the narrow view that the rule in question was adopted solely for the protection of passengers, or solely for the protection of employes who were not themselves negligent. It was intended for the protection of the train and everybody on it. It imposes a duty, the breach of which is negligence, and an employe’s contributory negligence does not, under the Federal Employers’ Liability Act, deprive him of the benefit of the rule where its violation would be negligence as to anyone else on the train. Notwithstanding the fact that decedent’s negligence created a condition where the rules required the conductor to act, the accident might have been avoided if the conductor had, under the circumstances of the -case, used ordinary care in the application of the angle-cock. The case is not different in principle from that of Pennsylvania Co. v. Cole, supra, and we, therefore, conclude that if, as a matter of fact, the conductor was negligent in failing to stop the train, plaintiff may recover, notwithstanding his contributory negligence. On the question of the conductor’s negligence, there was sufficient evidence to take the case to the jury.
As before stated, the jury based its finding both, on alleged negligence of the conductor and the failure of defendant to have in use the block signal system. It may be contended that, as the verdict was proper on one of these grounds, the fact that the jury based its finding on an insufficient ground was not prejudicial. As this action is brought under the Federal Employers’ Liability Act, that contention cannot be upheld. That act introduces the rule of comparative negligence. Where the causal neglig’ence is partly attributable to the decedent, and partly to the carrier, his administratrix cannot recover full damages, but only a proportional amount, bearing the same relation to the full amount as the negligence attributable to the carrier hears to the entire negligence attributable to both. N. & W. R. Co. v. Earnest, 229 U. S., 114, 57 L. Ed., 1096. In comparing the negligence of the decedent and the carrier the jury may have concluded that because plaintiff was negligent in one particular, while the carrier was negligent in two particulars, the negligence of the carrier was much greater than that of decedent, and the carrier should, therefore, be required to bear the greater part of the entire loss. Where, therefore, the amount of the verdict neessarily depends on the amount of negligence attributable to the carrier, a finding based on negligence not authorized by law is prejudicial, even though based on another and sufficient ground.
On another trial the court will exclude all evidence bearing on the grounds of negligence other than that of the conductor, and will submit the case to the jury on that ground alone. Instead of leaving the question of decedent’s contributory negligence to the jury, the court will tell the jury that decedent was guilty of contributory negligence, and at the same time direct the jury in conformity to- the rule laid down in N. & W. R. Co. v. Earnest, supra, how to apportion the damages in the event they believe that defendant’s conductor was negligent in failing to stop the train.
The foregoing conclusion makes it unnecessary to determine whether or not the verdict is excessive.
Judgment reversed and cause remanded for new trial consistent with this opinion.