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and friends of the deceased, the defendant , until she was safely off the plank and on arranged to have one of its engines and a the ground. But clearly under the facts, fiat car, on which temporary seats were plac- about which there is no dispute, the defended, carry the remains and the relatives and ant was not a common carrier of passenfriends of the deceased to the cemetery, gers, and did not owe to the plaintiff the which it appears was near the Louisville & high degree of care sought to be imposed on Nashville Railroad tracks on which these en- it, or any care, except ordinary care not to gines and cars were operated. The plaintiff, actively injure the plaintiff. The defendant who lived some distance from Benham, was was under no duty to assist the plaintiff to on her way to that place and reached the either get on or get off the car, and in so cemetery about the time that the funeral got doing was merely showing her an ordinary there, and after the burial, when the persons courtesy such as was extended to the other who had gone down there on the flat car were women and children on the car. Towns, who getting on to return, the plaintiff, without was in charge of the car, was not guilty of special invitation or request, followed the any act of positive negligence in letting go crowd from the cemetery to the flat car, and the hand and arm of the plaintiff at the time in company with the family and friends of and place that he did, because, as we have the deceased got on the flat car for the pur- said, he owed her no duty of assistance. pose of riding to Benham. No charge what. There can be no actionable negligence unless ever was made by the defendant for this there is a breach of duty, and the master service, nor did any person receive or collect cannot be held responsible for the courtesies any compensation from the plaintiff, or ask of his servant when the master is under no or invite her to ride back on the car. The duty to extend the courtesies and the serve person in charge of the car, Mr. Towns, sup- ant merely renders them as a favor or acposed, as we may assume, that she was one commodation. The negligence of the servant of the company who had gone down on the in this case--if we should assume that he car, and no questions were asked or inquiry was negligent, although as a matter of fact made when she got on. When the car ar- he was not-was merely passive negligence, rived at Benham on its return from the consisting of the omission to assist the plaincemetery, it was stopped at a convenient tiff until she was safely on the ground. It place, there being no depot or arrangements is not contended that he was guilty of any for passengers, and the persons on the car affirmative act of negligence, or that her ingot from the car to the ground by walking jury was caused by any act of commission on a strong plank about 14 feet long and 12 on his part. inches wide, one end of which was placed on At the most the plaintiff was a mere inthe floor of the car, which was about 442 vitee or licensee, and it is well settled that a feet from the ground, and the other end was person occupying this status, who is injured put on the ground. When the plaintiff start- while on the premises of another, cannot ed down the inclined plank Towns, who, as maintain an action against the owner of the said, appears to have been in charge of the premises, unless he has been guilty of some arrangements for the defendant, was stand- intentional or positive act of negligence that ing by the plank, assisting the women and causes the injury complained of. Indian Rechildren to walk down it, and for this pur- fining Co. v. Mobley, 134 Ky. 822, 121 S. W. pose he took hold of the hand and arm of 657, 24 L. R. A. (N. S.) 497. the plaintiff as she left the car, and held to

If the defendant in this case could be held her until she had walked nearly to the liable, so could any private person, who furground and near the end of the plank. When nished a wagon, team, and driver for accomshe reached this place on the plank which modation to carry people he was under no was about 2 feet from the ground, Towns let duty to carry, be made liable if the driver of go her arm and hand for the purpose of as- the wagon, in helping one of them on or off, sisting some other ladies or children who should by accident or inattention let him were behind her on the plank, and when he fall. And of course there could be no lialet her go, she slipped in some way and fell bility on the owner in such a state of case. to the ground, breaking her arm.

Wherefore the judgment is affirmed. Under these circumstances it is sought to make the defendant liable upon the ground, as stated by counsel, that the defendant owed to the plaintiff “the duty of exercising the highest degree of care necessary for her

LOUISVILLE & N. R. CO. 5. MINK. safety and protection from the time she (Court of Appeals of Kentucky. March 5, boarded the train until she safely alighted

1918.) therefrom.” In other words, it is sought to 1. APPEAL AND ERROR C991(2)-REVIEWcharge the defendant with the same high de CREDIBILITY OF WITNESSES -- JURY QUESgree of care that a common carrier of passengers would owe to a passenger, and con- and its determination will not be disturbed on

The credibility of testimony is for the jury, sequently the duty of assisting the plaintiff appcal.

Em For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


2. APPEAL AND ERROR Cm1195(4)-REVIEW-, the employ of the appellant, Louisville & LAW OF CASE. Where a judgment in favor of a railroad low, as brakeman on a freight train. The

Nashville Railroad Company, defendant bebrakeman, who was caught by a low-hanging telephone cable that fell from its fastening, was crew consisted of an engineer, fireman, conreversed solely on the ground that there was no ductor, and a rear and front end brakeman; evidence tending to show when the cable had the plaintiff filling the latter position. In sagged, so as to predicate a finding that the railroad company was negligent in failing to approaching a stop it was usually the duty discover and remedy the defect, and on retrial of the front brakeman especially to be on there was evidence as to the time when the ca- top of the train, for the purpose of either ble sagged upon which such finding could be based, the judgment on the former appeal is not giving or receiving necessary signals to or conelusive as the law of the case; the evidence from other members of the crew. While his on the second trial differing from that on the train, which was the first section of No. 90 first.

traveling from Norton, Va., to Corbin, Ky., 3. MASTER AND SERVANT Cw286(25)-INJU- through Middlesboro, Barbourville, and othRIES TO SERVANT — ACTIONS – JURY QUES

er intervening stations, was approaching the TION.

In an action for injuries received by a rail- depot at Middlesboro, the plaintiff was at his road brakeman, who while riding on top of a usual place on top of the train near the train in discharge of his duties was caught and front end of the first car next to the tender. injured by a telephone cable, which had sagged from its fastening, the question whether the He was looking toward the rear of the train, railroad company was negligent in failing to which consisted of 28 cars and a caboose, to discover and remedy the defect held, under the receive any signals which might be given by evidence, for the jury.

the conductor or the rear end brakeman. 4. APPEAL AND ERROR em 1066 REVIEWHARMLESS ERROR.

The train was traveling, according to his tesIn an action for injuries received by, a timony, at a speed of about 12 miles per brakeman, who was caught by a low-hanging hour, but according to other witnesses only telephone cable which had slipped from its fastenings, an instruction predicating liability avout 6 miles per hour, and while he was on the fact that defendant railroad company or looking toward the rear of the train he came its agents in charge of the right of way knew in contact with a telephone cable, which of the dangerous condition of the cable, if it struck him on the left side of the head just was dangerous, or by the cxercise of ordinary below the ear and knocked him down upon care could have known thereof, is harmless, though erroneous, because the record failed to the top of the car, According to his testishow any knowledge on the part of the railroad mony, he was unconscious for a few seconds company of the dangerous condition, for it will and was prevented from falling between the be presumed that the jury based their verdict on evidence that the company by the exercise cars only by the wheel brake on the rear end of reasonable care might have known of the of the car upon which he was riding; the dangerous condition of the cable.

place where he was struck being about one5. APPEAL AND ERROR 1004(1)-DAMAGES Om 208(1)-REVIEW-MEASURE OF DAMAGES

third of the length of the car from its front --JURY QUESTION.

end. For the injuries he sustained he filed The measure of damages in a personal in this suit, and upon trial recovered a judg. jury action is for the jury, and unless the award ment for $4,000, which upon appeal to this is so large as to strike one at first blush that it was rendered under the influence of passion court was reversed in an opinion reported or prejudice, it will not be disturbed as being in 168 Ky. 394, 182 S. W. 188. On the secexcessive.

ond trial plaintiff recovered a judgment for 6. DAMAGES O132(1) - PERSONAL INJURY

$1,350, and, complaining of it, this appeal is MEASURE.

An award of $1,350 in favor of a railroad prosecuted by the appellant. brakeman, who was caught and injured by a [1] On the first trial, as well as on the low-hanging telephone cable, while standing on second one, the evidence showed that the the train, cannot, it appearing that the brakeman was thrown to the car roof and strained, cable which produced the injury was ownso that be was practically disabled from lifting ed by the Home Telephone Company, with heavy objects, be disturbed as excessive; there which the defendant had no connection, and being testimony that he was treated by several therefore had no control over either the condoctors and was considerably injured.

struction or the maintenance of the cable. Appeal from Circuit Court, Whitley It was attached to hangers, which in turn County.

were screwed to posts on either side of the Action by A. M. Mink against the Louis- track and occupied an elevation when so conville & Nashville Railroad Company. From structed of about 23 feet above the track, a judgment for plaintiff, defendant appeals. which was amply sufficient to enable one Affirmed.

standing upon a freight car to pass under it See, also, 168 Ky. 394, 182 S. W. 188.

unmolested. The east end of the cable had Benjamin D. Warfield, of Louisville, and become detached from the post, and had Hiram H. Tye, of Williamsburg, for appel- fallen several feet below to some telegraph lant. Sawyer A. Smith, of Barbourville, and wires running parallel with the railroad J. B. Snyder, of Williamsburg, for appellee. track on that side. While in this position

it was not elevated above the track more THOMAS, J. The appellee, Mink, who was than 16 or 18 feet, which was not suffiplaintiff below, on August 16, 1914, was in cient to make a clearance for one standing

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

upon a car passing under it. There was no plaintiff was hurt was passing through Barevidence on the first trial showing when the bourville the following Sunday, Poindexter cable had fallen from its attachment, so as noticed the evidences of plaintiff's injury, to menace the safety of the railroad em- and upon inquiry learned that he had been ployés, and since the cable was not owned, hurt by the cable at Middlesboro, whereupon managed, or under the control of the defend the witness told plaintiff what he had seen ant, this court in the first opinion declined the day before. At that time plaintiff did not to apply the doctrine of res ipsa loquitur, as know the name of the witness, or where he was insisted upon by the plaintiff. This re- lived, and he offers this as an excuse for fusal presented a prima facie case of neg. not having the witness present at his first ligence on the part of the defendant, aris- trial. ing from the mere fact of the cable being out There is no positive evidence contradicting of repair and in a dangerous position. With the testimony of Poindexter concerning the this feature of the case eliminated, it was condition of the cable as testified to by him determined by this court that the only negli- on Saturday morning before the injury the gence of which the defendant could be guilty next day between 12 and 1 o'clock, except under the circumstances was its failure to negative and somewhat vague testimony givexercise ordinary care to discover the dan- en by the section boss and the trackwalker gerous position of the cable in time to repair at Middlesboro, to the effect that they did it and make it safe, or to remove it in some

not see the fallen condition of the cable at way as a menace to the safety of the em- any time after Poindexter claims to have ployés upon its trains. But the court held seen it until after the accident. They show that this measure of duty on the part of the that they could have seen it had they looked, defendant could not be applied under the but neither of them, nor does any other witfacts as then disclosed, because there was ness, state that they made an actual observaan entire absence of testimony as to when tion of the cable between those times. In fact, the cable became detached, and therefore the trackwalker positively states that he did dangerous, and on this point said:

not look at the cable while performing his “The cable became a menace to appellant's duties as such employé, and on the first trial employés the moment it came within the space the section boss stated positively that he did occupied by appellant in the movement of its not notice the cable between the times mentrains, and from then on appellant's duty of inspection demanded that appellant should have

tioned. It is shown in the testimony that discovered it as soon as it could have been some 25 or more trains passed the point withdone by the use of ordinary care, and if said in 24 hours; the last one passing there just cable had been down, as it was when it struck preceding the accident was a freight train appellee, or even loose from its support, for a sufficient time for appellant in the exercise of going south about an hour before.

It was ordinary care to have discovered it, appellant the duty of the brakeman of that train to be would be liable, but it is here that appellee's on top of it, and, if he had been, he would evidence failed. There is absolutely no evidenco have discovered the condition of the cable if when the cable sagged, and from the evidence in the case it might reasonably be concluded to it had been down. He did not make such bave done so at the very instant it struck ap- discovery, and it is argued that this is posipellant could not by the exercise of ordinary was either mistaken or is testifying falsely. pellee. If this were true, then, of course, ap- tive testimony to the effect that Poindexter caro have discovered it.” On the second trial the plaintiff intro

But no such conclusion is justified by the duced for the first time a witness by the record, because that witness, although it name of Poindexter, whose testimony, if true,

was perhaps his duty to be on top of his supplied the omission pointed out in the

train, nowhere says he occupied that place first opinion, and did show how long be- at that point. On the contrary, he says that fore this accident the cable had sagred to sometimes he was either in the engine or the the position where it became a menace to and may have also been so located at the

caboose when the train was passing there, appellant's employés upon the top of its time. The members of the crew of that last trains passing under the cable,” and which train passing the point are the only witnesses testimony removed the objection to the first judgment that "there is absolutely no evi

introduced by the defendant, although, as dence when the cable sagged.” The substance stated, perhaps as many as 25 trains passed of Poindexter's testimony is that on Saturday the point after the time when Poindexter before the accident, which occurred on Sun- says he saw the cable down. day, at about 6 o'clock a, m., he went from

It must not be forgotten that, although Barbourville, near which place he lived, to the cable in its fallen condition would come Middlesboro, and that at 9 o'clock a. m. of in contact with one standing on top of a that day he went to the depot at the latter car, yet it was high enough to permit a pla to board a train for his return trip, but train to pass under it. The testimony of the it had passed, and while there he and a friend, telephone men corroborate that of Poindexter who is now in the United States army, in as to the position of the cable in its fallen walking around the depot, noticed the cable condition, and upon the whole case we do not in its fallen-down condition, and that it was find sufficient testimony in the record, either then not exceeding 16 or 18 feet above the direct or circumstantial, to authorize the rails of the track. When the train on which jury, or this court upon appeal, to discard

bis testimony as being wholly incredible. | defendant's motion for a peremptory inOn the contrary, we find corroborating cir-struction in its favor. cumstances entitling it to belief, although [3] It is conceded (as was held on the his statement that he went to Middlesboro former appeal) that defendant owed to its on the day in question "just to be going” is employés on its train to which plaintiff benot altogether convincing. These matters, longed the duty to exercise ordinary care td however, were pre-eminently for the jury. It discover dangers and to render reasonably has shown by its verdict that it accepted safe the place where plaintiff was required this new testimony, and under the well-known to perform his duties. Whether by the exrules of practice in this state we are not au- ercise of such care it could have discovered thorized to disturb its finding upon this issue. the danger which produced the accident from

[2] Counsel for appellant insist that this the time Poindexter first saw it, as he testiappeal presents conditions where “the law fied, and could have remedied it before the of the case" rule should be applied, and in plaintiff was hurt, was a question peculiarly support of that contention he cites many for the jury. cases from this court, among which are [4] The court gave to the jury five inLouisville & Nashville Railroad Co. v. Schmet-structions, defendant offering none except a zer, 94 Ky. 424, 22 S. W. 603, 15 Ky. Law peremptory one, which, as we have seen, was Rep. 194; L. & N. R. R. Co. v. Ricketts, 52 properly overruled. To all of those given, S. W.939, 21 Ky. Law Rep. 662; L. & N. R. R. except No. 5, the defendant objected, and, Co. v. Hocker, 111 Ky. 707, 64 S. W. 638, 65 its objections being overruled, it excepted. S. W. 119, 23 Ky. Law Rep. 982, 1274; Qui- However, in the brief of counsel only No. 1, senberry v. Chenault, 143 Ky. 312, 136 S. W. given by the court, is criticized, and this not 625; Samuels & Co. v. Gilmore & Co., 142 Ky. severely, since, indeed, it could not well be 166, 134 S. W. 169; Helm v. C., N. 0. & That instruction is the usual one given in T. P. Ry. Co., 156 Ky. 240, 160 S. W. 945; such cases, and it predicated liability upon Keiffer v. L. & N. R. R. Co., 143 Ky. 383, 136 the fact that defendant, “or its agents in S. W. 858; I. C. R. R. Co. v. France's Adm'r, charge of the right of way at the point men123 S. W. 336; Hopkins v. Adam Roth Gro- tioned, knew of the dangerous condition of cery Co., 105 Ky. 357, 49 S. W. 18, 20 Ky. the said cable, if it was dangerous, or by Law Rep. 1227; and Beaver's Adm'r v. Proc- the exercise of ordinary care could have tor Coal Co., 159 Ky. 578, 167 S. W. 885. known thereof,” etc. The criticism of this He might have cited, in support of that rule, instruction is aimed at that part of it fixing many more cases from this court, as well as liability on the defendant if it, or its agents from others, and also from all the text-writers in charge of its right of way, "knew of the upon the subject. That rule, as announced. condition" etc.; it being insisted that there by the cases supra, is that the law as settled was no evidence that any one connected with by the first appeal is the law of that case, the defendant knew, previous to the acci"right or wrong," upon all subsequent trials, dent, that the cable had fallen, and that it either in the lower court or upon appeal, was therefore error to predicate liability where the testimony presents substantially upon such actual knowledge. Answering the same state of facts. The converse of the this, we might say that the record is not alproposition is equally true that, where the together barren of testimony and circumtestimony upon any subsequent trial is sub- stances from which the jury might be austantially different from that heard upon the thorized to find such actual knowledge; but, first one, the court is not bound by anything if it were, we are not to presume that the which may have been said on the first hear- jury based its verdict upon such actual ing of the case upon the record as then pre- knowledge, if there was no evidence to supsented. Many cases besides those above port it, but rather would it be concluded that could be cited in support of the converse of the verdict was based upon the other conthe rule which we have just stated, but it dition, amply supported by the testimony, is so fundamental and so well understood by viz. “or by the exercise of ordinary care courts and practitioners that we deem it could have known thereof.” If, therefore, unnecessary to thus incumber this opinion. the criticism be well founded, the error is We find, then, that the only reason for revers- of such a nature as not to be prejudicial. ing the first judgment, based upon the ob

[5, 6] Lastly, it is complained that the verjections that "there is nothing in the evi- dict is excessive. On that point it is fairly dence to show how long before this accident well shown that the plaintiff received a conthe cable had sagged,” and “there is absolute- siderable wrench by his contact with the ly no evidence when the cable sagged," etc., cable of his neck, side, and back. While as found in the former opinion is entirely re- the skin was not penetrated at the place, moved by the testimony of Poindexter, which the cuticle was roughed up and made to innot only rendered the testimony upon the flame. He suffered considerably, and had last trial substantially different from that three doctors to treat him at different times. heard upon the first one, but put an entirely He worked no more at his old job, but after different phase upon the case, and the court some weeks he tried to do work in a coal

(Court of Appears 1918.)

heavy and he was unable to perform it. His , by whom deceased was employed. Held that, in neck, side, and back still pain him, and he view of the broad powers of the domiciliary adis practically disabled, according to his tes.

ministratrix, and of the fact that the ancillary

administration in Kentucky was only to enable timony, from lifting heavy objects. This her to obtain a settlement of the claim, and disqualifies him from doing many kinds of as the proceeds derived would have to be diswork. He was stout and healthy before be-tributed, according to the law of the deceased's

| domicile, such compromise is binding, and will ing injured, and, while there is a conflict in dof

defeat an action by the ancillary administrator. the testimony, yet there is some evidence indicating that his injuries because of strains Appeal from Circuit Court, Pike County. might be permanent. Upon issues of this Action by Roscoe Vanover, administrator kind the jury is eminently qualified to pass, of the estate of John Compton, against the under all the facts and circumstances, and Borderland Coal Company. From a judg. the rule is that, unless the verdict is so large ment dismissing the petition, plaintiff apas to strike one at first blush that it was peals. Affirmed. rendered under the influence of passion or Roscoe Vanover, of Pikeville, and J. C. prejudice on the part of the jury, it will not Cantrell, of Stone, for appellant. J. J. be disturbed as being excessive. Under this | Moore, óf Pikeville.

Moore, of Pikeville, James P. Woods, of Roarule, and after a careful consideration of the noke, Va., and Samuel D. Stokes, of Williamrecord, we do not feel that we would be au son, W. Va., for appellee. thorized to reverse the judgment upon this ground.

SETTLE, C. J. December 21, 1915, John Upon the whole case, we find no substan

Compton, an employé of the appellee, Bortial error against the rigits of the defendant,

derland Coal Company, while engaged in the and the judgment is therefore affirmed.

work of mining coal for it in Pike county, was killed by a block of slate which fell

upon him from the roof of the mine, and this COMPTON'S ADM'R v. BORDERLAND | action was brought by the appellant, Roscoe COAL CO.

Vanover, as administrator of his estate, seek(Court of Appeals of Kentucky. March 8, ing to recover of appellee damages for his

death; it being alleged in the petition that 1. DEATH C8-CONSTITUTIONAL PROVISIONS. it was caused by the negligence of appellee

An action for damages for death in Ken- and its mine foreman in failing to provide tucky is governed by Const. § 241, and Ky, St. $ 6, relating to and providing remedies for

him with a reasonably safe place for the wrongful death,

performance of the work required of him. 2. DEATH O31(3)-ACTION-RIGHT TO MAIN- The amount of damages claimed was $3,TAIN.

000. The appellee filed an answer which, Under Ky. St. § 3880, declaring that, if there be an executor or administrator of a de

with its amendments, consisted of four paracedent qualified by a court of the state, he alone | graphs; the first containing a traverse; the shall have power to sue, the authority to bring second, a plea of contributory negligence on an action for wrongful death authorized by the part of the decedent; the third, assumpConst. § 241, and Ky. St. § 6, is conferred upon

tion of risk by the latter. In the fourth the resident administrator alone. 3. EXECUTORS AND ADMINISTRATORS 60— paragraph it was alleged, in substance, that DOMICILIARY ADMINISTRATORS-AUTHORITY. | at the time of his death John Compton was

A domiciliary administrator, in contradis a bona fide resident of Scioto county, Ohio, tinction to an ancillary administrator, whose au

with his family, consisting of a wife and thority extends only to the property of the decedent within the jurisdiction for which he is two children; that he came to Kentucky appointed, has title to the assets of the deceased shortly before his death to accept temporary wherever situated which may be recognized in employment in appellee's mine, intending and foreign jurisdictions in the absence of local

expecting to return in a few weeks or months creditors or local administration therein. 4. EXECUTORS AND ADMINISTRATORS Cm87–

to his home and family in Scioto county, ACTIONS FOR WRONGFUL DEATH-RIGHT OF Ohio; that he did not own any property or ANCILLARY ADMINISTRATORS TO MAINTAIN. owe any debts in Kentucky; that his widow, Const. § 241, and Ky. St. § 6, provides for

Belle Compton, was on January 20, 1916, apan action for wrongful death, while section 3880 declares that, if there be an executor or ad-pointed by the probate court of Scioto counministrator of a decedent, he alone shall have ty, Ohio, administratrix of his estate, and power to sue, but any creditor who shall pay then gave the necessary bond and duly qualhis debt or part of it without notice shall be discharged. Section 3882 authorizes a personal

iified as such; and that between that date representative to compromise and settle any and January 26, 1916, the day of the insticlaim or demand for damages growing out of tution of this action in the Pike circuit court the injury to or death of the decedent, but sec- by appellant, she, in West Virginia, the state tion 3878, authorizing actions by nonresident representatives, does not include actions for

in which appellee was incorporated and torts. One while temporarily in this state met where it has its chief office, as administrahis death, and his widow, who was duly ap- trix of the decedent's estate, made with appointed administratrix in the state of his domicile, and without knowledge of the appointment

pellee a compromise and settlement whereof an ancillary administrator in Kentucky, com-! by the liability of appellee, if any there was, promised with defendant, a foreign corporation for the death of the decedent, was agreed by

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