167 Ky. 676 | Ky. Ct. App. | 1916
Opinion of the Court by
Affirming in paid and reversing in part.
The appellant, 0. P. Nelson, is a yonng man of twenty- three years of age, and' on the 25th day of June, 1914, was engaged in the service of the appellee, Black Diamond Mining Company, which was engaged in operating a coal mine near Drakesboro, in Muhlenberg county. The appellee, W: B. Franklin, was a superior seivant of the appellant, and was engaged in the service of his co-appellee as the day foreman of the mines. The service which appellant was engaged in performing was that of a motor rider, or helper in the operation of the motor, which was used in the mines for the purpose of moving the cars loaded with coal out of the mines and returning the empty cars to be reloaded. The motor was propelled by electricity, and was operated by one Jernigan, who had a seat upon the rear end of the motor, and who controlled its operation. The appellant, in the performance of his duties as motor rider, had a seat upon the front end of the motor, and it .was his duty to use the sand upon ,the rails upon steep grades to lessen the momentum of the motors and attached cars, in descending grades, and to assist the motor in ascending grades. It was also his duty to observe the track in front of the motor for any obstructions that might be upon it and to signal the motor driver. The motor was about twelve to fifteen feet in length, and was supplied with a head light of several hundred candle power. At a cer
Appellant brought this suit against the. .appellees, Black Diamond Mining Company and its.foreman, W. B. Franklin, in which he sought to recover ■ from them damages for the injuries he had sustained. ■ He alleged that the appellee, Franklin, as miné foreman, had con- • trol over the men employed in the mine, and with full power to hire and discharge, direct and control the employes of the- appellee company, and had control over the operation and construction of the mine; that he was forced to jump from the motor upon which he was riding.to avoid great and impending danger from a collision with the empty car, which had been left upon the track by the negligence of the appellees without his knowledge, and that at the place where he was compelled to jump from the motor the appellees had constructed its road way with the track too near to the wall, negligently rendering the track defective and dangerous to him and the other employes in the discharge of their duties, and had; with gross negligence, permitted the track to be obstructed with coal ,and slack in such a way as to render the track defective and dangerous; that this defective and dangerous condition of the track was known to the appellees or could have been known by the exercise of ordinary care, but that he did not know it and could not have known it by the exercise of ordinary care; that appellees had employed and permitted to remain in their employment Jemigan, who was reckless and incompetent as a motor driver, and Hinds, the switchman, who was without experience and unfit to act as such, and that the switchman negligently gave appellant a signal to proceed, and that the track was safe, when it was, in fact, obstructed by the car and otherwise, as charged; and that the motor driver operated it at a reckless and dangerous rate of speed, and that all of the acts of negligence charged by him, as above stated, were gross, and that he was injured by the concurring gross negligence of appellees and the other servants of appellee company; that he did not know of the incompetency of either Jernigan or Hinds until after his injury, but that appellees did know of their incompetency or could, have known by the exercise of ordinary care, but with knowledge and means of knowledge of such incom
The appellees' each, filed a separate answer, in which they each traversed the various allegations of the petition, and in addition thereto plead that the injuries incurred' by appellant were caused and arose from his contributory negligence. The plea of contributory negligence was, by agreement, controverted upon the record.
Upon the trial, after all of the evidence had been heard, both for the appellant and the appellees, the court, over the objection of the appellant, instructed the jury peremptorily to find for the appellees, which the jury accordingly did, and a judgment was rendered dismissing the petition, to all of which the appellant excepted. The appellant filed grounds for .a new trial and entered a motion to that effect, which was overruled by the court and he now appeals to this court.
The appellant complains that the court erred in requiring a direct verdict by the jury against him, and, also, erred to his prejudice in excluding from the jury competent evidence offered by him upon the trial.
For the purpose of determining whether the court was in error in directing a verdict for the ■ appellees, it will be necessary to consider the facts, which the evidence tended to prove. Where the evidence conduces,, to any extent, to establish a right of recovery upon the part of one sueing, a motion to instruct the jury to find a verdict against him ought to be denied. Before such an instruction is authorized, it must appear, that after admitting the testimony offered by him to be true, and every reasonable inference to be deducted from it, the claim of one seeking a recovery, yet fails to be supported. Shelby v. C. N. O. & T. P. Ry. Co., 85 Ky., 224; L. & N. R. R. Co. v. Howard, 82 Ky., 212; Bedford v. L. & N. R. R. Co., 82 Ky., 286; Eskridge v. C. N. O. & T. P. Ry. . Co., 89 Ky., 367; Jarman v. Howard, 3 Mar., 383; Rowland v. Hanna, 2 B. M., 129; Easley v. Easley, 18 B. M., 93; Trotter v. Sanders, 7 J. J. M., 321; Slaughter v. Morgan, 1 Met., 29; Stephens v. Brooks, 2 Bush, 138. The motion for a direct verdict, in the case at bar was made at the conclusion of the evidence in chief for appellant, and was then overruled;-and after the introduction of the' evidence for the appellees, the motion was renewed and sustained. ■ In- such case, the appellant was ' entitled also to the benefit of any facts which were do-
In this case the appellant set forth in his petition the specific acts of negligence, which he alleged concurred to cause his injury. It is well settled that in actions to recover damages for personal injuries resulting from negligence, if the negligence complained of is stated in general terms, any specific acts of negligence may be proven and relied upon, but if the specific acts constituting the negligence complained of are alleged, acts not alleged in the pleadings can not be proven nor relied upon. L. & N. R. R. Co. v. McGary’s Admr., 104 Ky., 517; Edwards’ Admr. v. C. & O. Ry. Co., 32 R., 1241; Gaines Co. v. Johnson, 32 R., 58; Ballard & Ballard Co. v. Durr, 165 Ky., 632.
The acts of negligence relied upon in the petition are ás follows:
First: The leaving of the empty car upon the track, without notice to appellant.
Second: The construction of the entry at the point where appellant was compelled to jump from the motor to avoid the danger to him of a collision of the motor with the empty car, was such that the wall was too near the track, thereby rendering the track defective and dangerous.
Third: Allowing the track to be obstructed with coal and slack in such manner as to render the track defective and dangerous.
Fourth: Having in its service the motor driver, Jernigian, who was incompetent and reckless, and who, at the time of the injury, was operating the motor at a hig;h, reckless and dangerous rate of speed.
Fifth: The employment of Hinds as a switchman, who was young, without experience and unfit to perform the duties- required of him, and who gave a signal to proceed and that the track was clear, when, in fact, it was obstructed by the empty car.
Without undertaking to state the evidence with particularity, that introduced by appellant conduced to show;
There is no proof that Hinds was incompetent to perform his duties, except his own statement, and no proof that if incompetent, that Franklin or any of his superiors knew or. by the exercise . of ordinary care could have known of his alleged incompetency.
The evidence offered by appellant conduced to prove the other acts relied upon by appellant as negligent, and concurring to cause his injury, and as the proximate cause of it, and his cause should have been, under proper instructions, submitted to the jury for its determination as to the Black Diamond Coal Company. The acts relied upon by appellees to support their plea of contributory negligence are not supported by uncontradicted testimony, and it was the province of the jury to determine the weight to be given to the evidence in support of the plea of contributory negligence, and that given in denial of the proof of the facts upon which it was based. Even though the facts are undisputed, if reasonable men may draw different conclusions from them, the question of negligence is to be decided by the jury and not by the court. Central Coal & Iron Co. v. Owens, 142 Ky., 19.
The appellant offered in evidence Dr: Wigglesworth’s table of mortality, but upon objection, it was excluded. This was error. Upon a claim of one-for damages for a personal injury, which impaired his power to earn money, it is competent to use such table in- proof of the
As to the appellee, W. B. Franklin, the ’uncontradicted evidence‘shows, that he had no authority to employ servants in the mines, except by specific directions from the superintendent, and no authority to discharge an employe; that he did not employ Jernigam and had no authority over him.
The evidence to the effect that a flag or rag was carried upon the rear car of a train of empty cars to inform the switchman whether all the cars were attached or that one or more were detached and obstructing the track, and that Franklin placed Hinds at the switch to do duty as switchman, and failed to inform him of the regulation in regard to the flag or rag upon the rear car of the empty trains, was evidence conducing to prove an act of negligence upon the part of Franklin, ■ hut this evidence was not admissible, because this act of negligence was not alleged nor relied upon in the petition.
It is therefore ordered that the judgment appealed from be affirmed as to appellee, Franklin, and reversed as to the Black Diamond Mining Company, and' remanded for proceedings in conformity to this opinion.