163 Ky. 823 | Ky. Ct. App. | 1915
Affirming.
William H. Stewart, a locomotive engineer in the service of the Louisville & Nashville Railroad Company and engaged in interstate commerce, was injured at Cumberland City, Tenn., on September 5, 1908, .and died on September 27, 1908, as the result of his injuries.
His widow was appointed administratrix of the estate, and she instituted this action in the Warren Circuit Court to recover damages for the negligent killing of her husband and intestate, for the benefit of herself and four children.
There was a verdict and judgment in'her favor, which upon appeal was reversed. See 156 Ky., 550, 157 Ky., 642; 161 S. W., 557, 163 S. W., 755.
Upon the return of the case to the circuit court, there was a second trial, which resulted in a verdict and judgment in plaintiff’s favor in the sum of $11,885, apportioned as follows: To the widow and the three older children, $2,472 each, and to the youngest child, $4,469. The railroad company again appeals.
Stewart was the engineer in charge of the locomotive of a freight train proceeding northward on the day mentioned. Jones was conductor of the train, and Hill, rear brakeman. On reaching Cumberland City, they met a south-bound freight train, which was standing on the main line just north of the switch at the south end of the passing track. Stewart’s train entered upon this passing track at the south switch thereof and proceeded north thereon, pushing ahead of the locomotive several cars which were found standing on the passing track. On reaching the north end of the passing track, it was found that the rear end of the train was not yet in the clear at the south end of the passing track, and in order to let the south-bound train, which was standing on the main line proceed, they opened the switch at the north end of the passing track and pulled the front end of the train out onto the main line. After this was done and the south-bound freight train had gone, it was necessary to arrange for a south-bound passenger train which was approaching Cumberland City. Jones, the conductor, gave to Stewart, the engineer, a signal to back up. This was done while the front end of the train was out on the main line, the purpose of backing- the train being to clear the north end of the passing track so the passenger train could pass on the main line. "While the train was
On the first trial of the case, the testimony of the conductor, Jones was not available, but the rear brakeman testified; and in the opinion on the former appeal based upon the evidence as it then appeared, the court held that there was sufficient evidence of negligence upon the part of the conductor to take the case to the jury; but that Hill, the rear brakeman, was not negligent.
The conclusions stated in the former opinion based upon the evidence then appearing, were that under the rules the rear brakeman properly locked the south switch after bis train bad passed onto the passing track; that be properly went toward the front of the train for the purpose of cutting a crossing which was- blocked by the train; and that when the train began to back, finding that be did not have time to reach the south switch and throw it, be properly stopped the train by opening the angle-cock. And, that as to the conductor, be gave the order to back the train when be knew or should have known that the switch was locked, that the rear brakeman bad to attend to the cutting of the blocked crossing and was therefore absent from the switch, that bis train was too long to be in the clear at both ends of the passing track at the same time, and that when be backed it far enough to be in the clear at the north end, it would run out onto the main line at the south end, and that therefore the conductor was negligent, or at least there was sufficient evidence of negligence on bis part to take the case to the jury.
On the second trial, however, Jones, the conductor, was present and testified, and a different state of facts was presented.
Jones testified that the length of the passing track was thirty-two to thirty-four car lengths; that be bad thirty-three or thirty-four cars in bis train; that when be gave the signal to back be could see both ends of bis train; that it was not bis intention when be gave the signal to back, to leave the siding, that is, for the rear end of the train to pass out onto the main line; that in bis judgment be could have backed the train far enough to have cleared the main line at the north end of the sid
But, it is to be noted that the conductor testified that he had to “saw by” the south-bound freight train which they met at Cumberland City; and if this was absolutely necessary, that is, if his train was so long that the front end of it had to be run out onto the main line at the north end of the passing track in order that the rear end of the train at the south end of the passing track would clear the main line, then it would necessarily follow that to clear the main line at the north end of the passing track, the rear end of the train would have to be backed out onto the main line at the south end thereof. The record, however, does not conclusively establish such to be the fact. In pulling his train up on the passing tráck, it was pulled far enough to clear the first crossing to the north of the south switch, and possibly farther — the evidence is not clear on this point — but it may not have been very far out on the main line at the north end of the passing track, and its length may have been such that it could have all been placed on the passing track, clearing the main line at the north end, and without the rear end extending past the south switch.
So that the testimony of the conductor presented an entirely different state of facts from those obtaining- on the first trial, and upon which the opinion on the former appeal was based; and upon the second trial, there was some evidence of negligence upon the part of Hill, the rear brakeman, in acting too hastily, and in assuming that the purpose of the conductor was to back the rear end of the train over the closed south switch, or that it would be necessary to do so in order to clear the main line at the north switch.
Realizing that the negligence which caused the injuries’of the engineer was either that of the conductor
Of this appellant complains, insisting that as the court held in the opinion on the former appeal that Hill was not negligent, it was error to instruct in regard thereto. But as we have heretofore explained, the evidence in respect of these matters was radically different upon the second trial, and, of course, the instructions vary as" the facts vary.
Appellant contends that the verdict is excessive at least to the extent of the $1,997 awarded to this child more than to the others, and that this was produced by the exhibition of the child before the jury.
Under the Act, this child was a beneficiary and entitled .to participate in the recovery, and the exhibition of the child to the jury resulting from its presence in the court room is not grounds for complaint unless an excessive verdict was thereby induced. We do not think the verdict excessive, either as to the gross award or as to the sum apportioned to the child. The pecuniary loss to it resulting from the negligent killing of the father was necessarily greater than to the other children.
Since the filing of the appellant’s brief herein, this court has considered the above-mentioned contentions and decided them adversely to appellant’s claims. Ches. & Ohio Ry. Co. v. Kelly’s Admx., 161 Ky., 655; L. & N. R. R. Co. v. Johnson’s Admr., 161 Ky., 824.
The judgment is affirmed.