85 Ky. 423 | Ky. Ct. App. | 1887
Lead Opinion
delivered the opinion of the court.
John Needham while in the employ of the appellee, the Louisville and Nashville Railroad Company, as a switchman, and when engaged in the night time, in running one of its trains into its freight depot at Louisville, Kentucky, was thrown between and killed by being run over by the cars. It was the habit of the switchmen, in taking the trains into the depot, to either ride on the cars or run along a path at the side of the track. In this path was a hole or dry well, partially filled with debris, and covered over with a car door. The well had been in this condition for a long time, and its size and depth is variously stated by the witnesses. Its existence and condition, as well as that of the premises, was well known to the deceased, he having been in the employ of the company for several years. There is evidence tending to show that the hole was entirely covered by the door, and also testimony to the effect that enough of it was open at one side to admit a man’s foot, and that there was also a hole in the door sufficient for this purpose.
But one witness professes to have seen the killing, and he testifies that it occurred as last stated. All of the jury, however, did not believe his version of.the transaction, as they did not find that the death was. caused in the one way or the other.
The widow brought this action under section 3, chapter 57, of the General Statutes, to recover damages for the death of her husband, through the willful neglect of the company or its servants. The petition avers, that this neglect not only consisted in leaving the well in the pathway, but in failing to light the entrance to the depot.
The jury were directed to find a special verdict. It is as follows:
Q. 1. Was there or not, a pathway at or near the place where John Needham was killed, designed by defendant for the use of its employes, switchmen and others, and used by them while in defendant’s serviced
A. We say, there was. ,
Q. 2. Was there a hole in said pathway ?
A. We say, there was.
Q. 3. Was said hole, at and before the time of said. Needham’s death, covered over with a car door ?
Q. 4. Was there any holes in said car door or covering, or alongside the same, in the said pathway, sufficient in size to admit a man’s foot, or cause him, when passing along said pathway, to stumble and fall, or to be thrown to the ground ?
A. We say, yes.
Q. 5. If in answer to No. 4, they say that, at and before the time named therein, there were any holes in said car door, or alongside the same, in said pathway, of the size and description mentioned, then they will say whether or not the existence of such holes were, before the day the said Needham was killed, known to ■defendant’s employes in charge of its tracks and pathway in the depot where he was at work, or by the use of proper diligence on their part could have been so known to them \
A. We say, yes.
Q. 6. Was the pathway referred to in question No. 1 (if there was such a one), at and before the death of Needham, in a reasonably safe and good condition, and reasonably fit for use by said Needham and others, in like service %
A. We say, we of the Jury are unable to agree on an .answer to this question.
Q. 7. Was the condition of said pathway, before the death of Needham, known to defendant’s employes in charge of the depot and the tracks or pathways therein, or could they by use of proper diligence have known its condition %
A. We say, yes.
Q. 8. Did defendant or its employes, before and at
A. In answer to question 8, we of the jury say, no.
Q. 8J. Was the keeping of such lights at such entrance necessary for the safety of Needham and other switchmen engaged at night on work about said depot?
A. We say, no.
Q. 9. Did defendant or its employes in charge of said depot before the death of Needham know that such light was so necessary, or could they by the use of ordinary diligence have known it ?
A. We say, they did not know that it was necessary ; could have known it if it was necessary.
Q. 10. Did said John Needham, at and before the time when killed, know the condition of the defendant’s depot and premises at and near the place where he received his injuries which resulted in his death; and if so, how long had he known their condition ?
A. He did know it, and must have known it for several years.
Q. 11. At the time when said Needham fell between or under the cars and received the injuries which caused his death, was he standing or walking on the ground or pathway near the track; or was he riding on the side of a freight car ?
A. We of the jury are unable to agree in the answer to this question ?
Q. 12. Did said Needham lose his life because of a fall occasioned by the hole named in question 2, and occurring as he, said Needham, was walking or passing on the ground along the pathway near the track ? Or did he lose his life by falling or being knocked off the
A. We say, we of the jury are unable to agree in the answer to this question.
Q. 13. Was the car door over said hole, if there was such door over it, sufficiently heavy to keep it in place-, without being otherwise fastened to the ground ?
A. We say, yes, it was.
Q. 14. Was Needham, on the evening before his death, furnished with a lantern to enable him to see how to discharge his duties ?
A. We say we answer, he was.
Q. 15. Was the said freight depot lighted with gas when the said Needham was killed? If so, how many gas lights were then burning therein ?
A. We say we answer thirty-two lights were burning.
Q. 16. Was the death of said Needham caused by the willful negligence of defendant’s employes, or any of said employes ?
A. We say we answer, no.
Q. 17. If they answer question number 16 in the; affirmative, then they will say in what acts or act of omission or commission did such negligence consist ?
A. We say—
Q. 17-J. Could the said John Needham have avoided the injuries which caused his death by the exercise of ordinary care and diligence on his part ?
A. We say, we of the jury are unable to agree in an answer to this question.
Q. 18, If they say, in answer to question 16, that
A. We say—
The company moved for a judgment upon it in its favor, while the appellant, holding that it was not a ■complete verdict or sufficient to authorize a judgment, moved the court to set it aside and grant her a new trial. She now complains of the action of the court in rendering a judgment for the appellee.
It is true that the jury were unable to agree as to whether Needham, when he lost his life, was walking along the path or riding upon the cars ; or whether he lost his life by falling into the hole or by being knocked off the side of the car; but they did find that it was not necessary to have any more light at the depot entrance than the company had provided; that the deceased had a lantern to enable him to see how to perform his duties; that he knew and had known for several years the condition of the premises at the place where he was killed, and that his death was not caused by the willful neglect of the company.
It is urged that the last finding is but the inference or conclusion of the jury. The issue, however, was as to the existence of willful neglect. Whether one has been guilty of neglect is not only a question of law but of fact; and it is peculiarly the province of the jury to find the degree of it.
In the case of the Louisville and Nashville Railroad Company v. Collins, 2 Duvall, 115, it is said: “After full and careful consideration, we are satisfied that
Again: in L., C. & L. R. R. Co. v. Mahoney’s Administrator, 7 Bush, 237: “ Whether these and other facts developed on the trial sustained the charge of willful neglect, it was the peculiar province of the jury to determine.”
And in Claxton’s Administrator v. L. & B. S. R. R. Company, 13 Bush, 642, the court said: “Under such a state of proof it was for the jury, and not for the court, to determine whether the company’s negligence was willful.”
Suppose the jury had found that Needham lost his life by stepping into the hole, and being thereby thrown under the car ; yet it would have been the province of the jury to have said whether the company should be charged with willful neglect. This was the issue. If there had been no special verdict, but a general one, the jury would have found for the •company, although they may have believed that the death occurred as the appellant claims, inasmuch as they found the. non-existence of willful neglect upon the part of the company.
If, however, the degree of negligence were a question •of law merely, yet not only the jury has said that there was no willful neglect, but the court has passed upon the question by affirming the finding of the jury by its judgment.
Again: it is the duty of the master to use ordinary care in providing for the use of the servant safe ma
They were told inter alia: “Ordinary care is that degree which is exercised by ordinarily prudent persons under similar circumstances.”
This instruction expresses the law in plain and concise terms; and is not, in our opinion, open to objection.
Judgment affirmed.
Rehearing
To a petition for rehearing filed by appellant,
delivered the following response of the court:
Counsel for the appellant understand that the opinion in this case takes the broad ground that when in an action for the death of the servant through the willful neglect of the master under section 3, chapter 57 of the General Statutes, such neglect has been shown, its effect may be avoided by evidence of contributory neglect upon the part of the deceased.
The language employed in that portion of it which speaks of the duty of the master to the servant in providing for his use machinery and premises reasonably safe, and the legal effect of the use of them by him with knowledge of and without complaint of their unfitness, was used in discussing the question of the existence or non-existence of willful neglect.
Upon a reconsideration of the case and a careful reading of the able petition for a rehearing, we feel constrained to adhere to our former conclusion.
The petition for a rehearing is overruled.
