130 Ky. 551 | Ky. Ct. App. | 1908
Affirming.
On the night of December 14, 1906, appellant’s intestate, Wm. Matthews, at the time a brakeman upon one of appellee’s trains, fell at Providence, Ky., from a stock car onto the railroad track, and was run over by the front wheels of a flat car, which broke and mangled both of his legs and otherwise injured him to such an extent that he died that night of the accident. He was a married man, 38 years of age, was then earning $60 to $75 per month, and had been in appellee’s service as a brakeman about five years. His administrator brought this action to recover of appellee damages for his death. The answer of appellee contained a traverse and charged appellant ’s intestate with contributory negligence, and this plea was controverted by reply. The trial resulted in a verdict and judgment in favor of appellee. Thereupon appellant entered motion and filed grounds for a new trial, but the lower court overruled the motion, and this appeal followed.
■ The train upon which the intestate was a brakeman was a mixed passenger and freight train, and' according to the evidence its locomotive, after leaving two freight cars on a side track, went on the house track for the purpose of getting a stock car and flat car that were standing thereon, and, having coupled to these, it moved out toward the main track, but stopped before the flat ear, which was in the rear of the stock ear, got entirely upon the main track. Immediately following the stop, the engineer, in obedience to a go-ahead signal from the brakeman Holloman, who had done the coupling and was standing
Appellant’s chief complaint is that the trial court erred in instructing the jury, in that they confined appellant’s right to recover to the negligence, if any, of appellee’s servants in the matter of extricating the intestate’s body from beneath the train, and allowed no consideration by the jury of the question of whether his fall from the stock car was caused by their negligence. We are satisfied the court committed no error in the particular indicated. There was no evidence conducing in the slightest degree to prove that the fall of the intestate from the car was caused by negligence on the part of appellee’s servants. It is true one or two persons testified that the intestate, while under the car, or near it, and immediately following his removal from beneath it, said he gave a signal to back the train as Holloman, his fellow brakeman on the ground, signaled it to go forward, and that the engineer obeyed Holloman’s signal by moving the train forward, which, being unexpected to' the intestate, caused him to lose his balance and fall off the car. We may concede that this statement of the intestate was near enough to the accident and sufficiently connected with it to make
It is likewise true that the evidence failed to show that the engineer was negligent in the manner of moving the train at the time the intestate fell from the ear. There was no’ sudden jerking or other unusual movement of the train. In order to fasten responsibility upon a railroad company for injury to an employe by a fall from its train caused by the movements thereof, it must be made to appear that the movement was one of unnecessary force, and not of a character usual in the operation of such a train. An illustration of our meaning may be found in the case of Yates v. Millers Creek Const. Co., 89 S. W. 241, 28 Ky. Law Rep. 331, wherein it is said: “The
The testimony with respect to the main issue was conflicting. Without discussing it in detail, that of appellant, though by no means convincing, tended to prove that appellee’s servants, by using the “jack” and lifting the end of the flat' car, could have readily and quickly released the intestate from his then position without further injury to him; but that the method adopted by appellee’s servants for his release — that is, of moving the car forward — not only caused additional injury to Ms legs, but wholly caused the injury to his breast or stomach, which resulted from the pressure thereon of the brake beam under the car as it was moved forward; and, further, that these additional injuries certainly hastened, and otherwise directly contributed to, Ms death. When we turn to appellee’s testimony, it throws an entirely different light upon the transaction, as is strongly conduced to establish the following facts: (1) That the bruise or injury to the intestate ’s breast or stomach was received in falling from the stock car and by Ms coming in contact with the cross-bar or timber on the end of the flat car; (2) that in view of the excruciating sufferings of the intestate while pinioned to the track by the wheels of the flat car, and the imminent danger of immediate death if not át once released, the moving of the oar; in the judgment of- appellee’s servants, afforded the quickest and safest means of effecting his release, and for these reasons, and none other, the method of moving
We find little force in appellant’s complaint that appellee’s witnesses were not experts, and consequently, that their expressions of opinion to the effect that the moving of the car afforded the best and safest means of extricating the intestate from his perilous position should have been excluded. The witnesses referred to were men experienced in .railroading, in the operation of trains, and more or less familiar with the accidents incident to railroad life. Their testimony amounted to more than a mere expression of opinion, and we think there was sufficient proof of their qualification as experts to express an opinion upon the subject in question.
We find no error in the exclusion by the court of the testimony of appellee Howard as to what was said
It is also insisted for appellant that the court, after granting the separation of witnesses on the trial, erred in allowing appellee’s conductor, Bramwell, to remain in the courtroom and thereafter to testify as a witness for appellee. It appears that Bramwell was allowed to remain in the courtroom at the request of appellee’s counsel, made when the separation of witnesses was ordered, and that- he sat with and advised counsel during the trial as the agent or representative of appellee. Doubtless this was because of his familiarity with the facts of the case. At any rate, it was allowed by the court, and the question of whether he should or should not have been excluded under the rule was a matter of discretion with the trial court, which this court will not attempt to control.
Finding in the record no error that will authorize a reversal, the judgment is affirmed.