139 Ky. 43 | Ky. Ct. App. | 1910
Reversing.
Appellee Hibbitt, a motorman on a street car running on Eiftli street, was injured in a collision between the car he was operating and another of the appellant company’s cars at the corner of Fifth and Market streets. The petition charged that the collision was due to the negligence of the motorman in charge of the Market street car. The answer was a traverse and plea of contributory negligence, and to this plea there was no reply. At the conclusion of the testimony offered for Hibbitt, counsel for the company moved the court to peremptorily instruct the jury to find for it; but this motion was overruled. Again at the conclusion of all the testimony a similar motion was made, which was also overruled. Thereupon the case was submitted to a jury and a verdict returned in favor of Hibbitt. Afterwards, in due lime, the company by counsel moved for a judgment Notwithstanding the verdict, and this motion was overruled. A reversal of the judgment in favor of appellee is asked upon two grounds: First, on account of the failure of the court to sustain the motion for a peremptory instruction; and, second, upon the ground that the motorman in charge of the Market street car was,a fellow servant of Hibbitt.
The plea of contributory negligence is an affirmative defense. It is a charge in substance that the injury of which the plaintiff complaius was caused by his own negligence and except for which it would not have happened. The Code provides, in section 126, that “every material allegation of a pleading must, for the purposes of the action, be taken as true unless specifically traversed.” And so we have held in a
It is insisted, however, that as the company introduced evidence conducing to show that Hibbitt was guilty of contributory negligence, and the jury was instructed that they could not find a verdict in favor of Hibbitt if they believed his injuries were caused by his contributory negligence, the omission in failing to reply to the plea was cured. And, further, that counsel for the company waived the right to complain after verdict of the failure to file a reply by introducing evidence upon the subject of Hibbitt’s contributory neglect and asking an instruction based upon this evidence. But counsel for the company saved in the proper manner all its rights by requesting the court to direct a verdict for it upon the conclusion of the evidence for Hibbitt, and also at the conclusion of all the testimony. The motion for a peremptory instruction should have been sustained, and certainly the company ought not to suffer because of the error of the court committed over its objection and after it had done everything it could do to save its rights. This precise question was before us in Mast v. Lehman, supra, in which the petition was so fatally defective as not to entitle the plaintiff to a verdict. The court said: “At the conclusion of the trial the defend
The fellow-servant rule is invoked in many cases but applied in few. This court is fully committed to the doctrine of what is known as the “association theory,” or, in other words, that the master will not he excused for negligence resulting in injury to one servant which is inflicted by a fellow servant unless •the servants are so engaged and situated as that each by carefulness and attention in the performance of his duties may protect himself from injury caused by the negligence of the person with whom he is work-
When the servant accepts employment, the master should be held accountable for injuries inflicted upon him by the negligence of other employes over whose movements the injured servant has no control. The imposition of this duty upon the master will” not render servants more indifferent to danger or lead them into conduct they would avoid if compelled to suffer the consequences of their own acts. On the other hand, it will have a tendency to make the master more careful in the selection of his servants. Let us take this case'as an illustration. The motorman on the Market street car was selected and employed by the street railway company. It had opportunity before engaging his service to ascertain his competency and afterwards to observe his capacity to safely operate a car, and had the right to discharge him at any time he failed to perform in a satisfactory manner his duties. But it is safe to say that Hibbitt did not have the right to exercise any of these privileges and was not consulted as to the fitness of the other motorman to perform the service he was engaged in.. And yet we are told that as between the street ear company and Hibbitt, Hibbitt must bear the burden of the other man’s incompetency or negligence. There does not seem to be good reason for thus shifting responsibil
In Shearman & Redfield on Negligence, section 180, et seq., Thompson on Negligence, section 4846 et seq., Bailey on Master & Servant, vol. 2, section 1795, et seq., McKinney on Fellow Servants, Labatt on Master and Servant, vol. 2, section 471 et seq., and in the notes to Murray v. S. C. Railroad Co., 36 Am. Dec. 268, and Fox v. Sanford, 67 Am. Dec. 587, numerous cases will be found illustrating the decisions of the various courts upon this subject. But there is so much confusion and conflict in the cases that it would be a difficult as well as unprofitable task to undertake to state the positions of the different courts. It would not, however, be far out of the way to say that in the various phases of the fellow-servant doctrine each court of last resort has adopted a measure or standard of liability for itself. Nearly all of them'seem to recognize that it is a harsh and unreasonable rule, and yet one that is so firmly fixed in the jurisprudence of the country that it cannot well be gotten rid of except by legislation. In one case the doctrine will be applied if the servants are engaged in the same field of employment or the same department of ser
For the error indicated, the judgment is reversed.