Louisville & Nashville R. R. v. Lowe , 118 Ky. 260 ( 1904 )

Opinion of the court by

JUDGE HOBSON

Reversing.

Appellee, William. S. Lowe, was in the service of appellant, the Louisville & Nashville Bailroad Company, as assistant inspector of trains at Lebanon Junction, which is a town of about 1,200 inhabitants, at the junction of the Knoxville branch with the main line of appellant’s road. There is maintained at this place a railroad yard, containing an extensive system of side tracks, used in making up freight trains going out of the yards. The regular trains, too, pass over the main tracks, and are sometimes switched on the side tracks, so that cars are moving about the yard pretty much all the time. A switch engine is kept in the yard for the purpose of switching cars and making up trains. Large coal bins are maintained) there by the appellant, at which all engines are supplied with coal. Perhaps as many as 150 engines, including the different passages of the switch engine, pass across the yard every day. The coal bins are north of the station, and in a curve of the track, so that an engine beyond a certain point can not be seen south of the bins. Appellee had been the watchman in the shops for about six- weeks before he was made assistant car inspector. On the 12th of September, 1899, which was the first day that he served as car inspector, he went on duty at six p. m., and inspected a freight train then ready to go out southward on the Knoxville branch. The train was standing on a side track east of the main track, fronting south. He began at the engine on the west side of the train, and inspected the cars, going back from one to another until the inspection was finished, when the train pulled out. The toolhouse to which he was then to go was on the east side of the tracks, and south of the point .where he then was. So he walked southward along by the side of the departing train, and, when the side track merged in the track next west of it, he got over on that track, and then on the main track. While he was walking) southward on the main track, an engine and tender backing down' on that track ran upon him in the rear, knocking him down, cutting off his right arm, and inflicting severe bruises, for which injuries he recovered damages in the sum .of $13,000. The evidence introduced by him on the trial tended to show these facts: The track was straight for some distance, and appellee, walking along with his back to the engine, could have been seen by the persons on it for some distance if a proper lookout had been kept. The tender had been loaded with coal at the coal bin. The coal was piled up higher than the engineer’s head, so that his line of vision did not reach the track, but rose above the track the further it was prolonged, and he was therefore unable to see anything on the track in front of him. A passenger train from the south was just about due on the main track, and appellee supposed that no other train would be on that track. So he kept a lookout in front of him for it, but did not look behind him after he started south. When he turned and started south, he looked back, and, seeing nothing, supposed the way was clear. The engine by which he was hurt was then standing at the coal bin around the curve. After taking coal, it came rather rapidly southward, in order to get off the main track before the arrival of the passenger train from the south. Appellee’s proof tended to show that no signal was given of the movements of this engine, and that' it was run substantially without any lookout in front of it. The proof is conflicting as to whether signals were given by the ringing of the bell, and as to the speed! of the train, but the evidence for appellee shows that the engine was running at something like twelve or fifteen miles an hour. When it' stopped after running over appellee, it was just even with the engine of the outgoing freight -train, by the side of which he had been walking, and had therefore run something like a quarter of a mile more than that engine after it started and appellee turned and began to walk south. When it stopped it had only one minute to get in on the side track in time, according to appellant’s proof. Appellee could not go directly to the toolhouse, because the outgoing freight train was between him and it. He perhaps got on the main track, thinking no other train, except the passenger train from the south, could properly be on that track at that time, and this would be in front of him. There is some evidence from which it is argued that the time had already expired when any other train, under the rules, might properly use the main track. The men in charge of the engine did not see appellee at all, and did not know he was hurt until informed by others.

Appellant complains that the court refused to instruct the jury peremptorily to find, for it. It also complains of the instructions given by the court. The court, in substance, instructed the jury that if they .believed from the evidence that appellee, at the time he received the injuries, was upon appellant’s track in the usual course.of his employment, and that its agents in charge of the engine and tender that injured him negligently failed to ring the bell or give other signal of its approach, or. negligently failed to stop' it after they saw his peril, or after they' might have seen it-by the use of reasonable care, then they should find for the plaintiff, unless they believed- from the evidence that he by his own negligence contributed to such an extent to the injury that but for his negligence it would not have happened, and that in this event he could not recover, unless appellant’s agents in charge of the engine and tender knew, or could have known by ordinary attention, of the peril in which his negligence had! placed him, and thereafter failed) to observe reasonable care to avoid the injury which followed. - ■

It is earnestly maintained for appellant that the evidence shows no negligence on its part; that, as to appellee, it was not required to give notice of the movement of its trains* or keep a lookout for him in moving them. In support of this view, we are referred to a number of decisions in other jurisdictions; but, without discussing them, we conclude that the rule has been so often held otherwise in this State, that it is no longer an open question.

Appellant has at Lebanon Junction something like 200 employes. ■ The place,at which appellee was injured is used by them and by other persons, to a great extent, in coming and going. The proof presents a case where the presence of persons on the track should reasonably be anticipated by those in charge of the train. The point was not far from the station — between it and the coal bins — and where a great many people passed back and forth, especially during the day. In Shelby’s Adm’r v. Cincinnati, etc., Railroad, 85 Ky., 224, 8 R., 928, 3 S. W., 157, the intestate was in the yard of the railroad at Junction City for - the purpose of soliciting employment in watering stock, and was run over by a train backed without signal or outlook. The place was not so much traveled as in the case before us, and the intestate was barely a licensee, and yet the court held the company liable. After showing that increased vigilance and precaution are required, the court said: “But it is obvious that neither the duty of giving the warning of the approach of trains, nor of resorting to the proper and necessary means to prevent collision with persons, can be performed unless there be some one in a position to see ■ahead of the train and to control it.”

In Conley’s Adm’r v. Cincinnati, etc., Railroad, 89 Ky., 402, 11 R., 602, 12 S. W., 764, the intestate was killed in like manner by a backing train as he was crossing the track, and the case is discussed on the idea that he was technically a trespasser. The court held the company liable, and said: “A train of running cars — these were running, according to the appellant’s proof, at the rate of about fifteen miles per hour — is more dangerous to the life of persons with whom it comes in contact than that of the most ferocious and powerful wild animal. And certainly it can not be lawfully turned loose to run by itself, and expose persons that may be on the track, either by accident, mistake, or design, to its destructiveness. Humanity positively forbids the owner of property that is dangerous to human life and safety to knowingly turn such property loose, even upon his own ground, where it will do mischief even to a technical trespasser.”. In L. & N. Railroad v. Potts, 92 Ky., 30, 13 R., 344, 17 S. W., 185, the deceased was in the employ of the railroad company at Junction City, a town of about 400 people. It was his duty to enter in a book the numbers of the cars standing on the side tracks and point out to the engineer those he was to take up. While standing on one of the tracks, he was run over and killed by some cars detached from the engine moving up behind him. without any lookout or signal of their approach. The court said: “The Shelby case, supra, which occurred in the same town, and the Conley case, supra, seem conclusive of the question. It was held on those cases that neither a train nor a single car should be permitted to move on a side track in a city or town, without some servant is in position to give warning of its approach, and to control its movements. ... It was as essential that the servant should be in a position thus to see and give warning, as he was to be in a position to control the cars.” In Barber v. Cincinnati, etc., Railroad, 14 Ky. Law Rep., 869, 21 S. W., 340, the intestate was in the service of the railroad company, getting out ballast, near High Bridge, Ky. The quarry was on the west side of the track, and, to obtain a suitable place for piling the rock, lie had to wheel it across the track and along by the side of it a short distance, to a point on the east side, and for that purpose was required to place plank across the track on which to run his wheelbarrow. Warning signals by the train to laborers working on the road were required by the rules of the company. But no signal was given of the approach of the train, and when! it was very close to the intestate he ran to the track, and tried to move! the plank to avoid danger of the train’s being derailed. In doing this, he was killed. The men in charge of the train knew of the labor done at this point, and the mode of doing it. The trial court gave a peremptory instruction to the jury to find for the defendant, but on appeal this was reversed. In the subsequent case of Illinois Central Railroad Co. v. Mahan, 17 Ky. Law Rep., 1200, 34 S. W., 16, Mahan was the telegraph operator at Arlington, and received orders to stop an extra train. If, disregarded his signal to stop, and he, seeing that a collision was inevitable with a passenger train coming in the opposite direction, unless the order to stop was obeyed, seized a lantern and followed the train some thirty yards, waving his light. It stopped, and conductor came back to him. The extra then backed in off the main track to get out of the way of the approaching passenger train, and they also got off the main track t'q let that train pass. In doing this they got on the side track and while standing there the train which he had stopped continued backing down on the side track' without any lookout or signal of its approach, and ran over him. Judgment in his favor was affirmed. The court said: “If, in the emergency which seemed to confront him, the appellee got on the side track, or too close to it, when there was space elsewhere within reach to stand or walk and give his signals to the approaching passenger train, he was perhaps guilty of negligence, but for which the injury would not have occurred, yet it is manifest that, by the exercise of ordinary care on the part of those controlling the backing train, the danger could have been discovered, and the injury averted. By witnesses in the service of the appellant it is shown to have been the duty of those operating the extra to have had a brakeman on the rear of the backing train, who might give warning of its comparatively noiseless approach; and it is no excuse for the failure to make such provision in this instance to say that the company was using, instead of the usual caboose, a box car, which did not conveniently admit of this customary precaution. The necessary care was not exercised on this occasion, and the failure to exercise it was gross negligence.”

These cases control the one before us, for the danger from the want of signals of the approach of the train, or outlook in front of it, was greater in this case than in any of them, ■under the evidence. The same rule has been announced elsewhere. Thus in 2 Thompson.on Negligence, section 1889, it is said: “Persons lawfully at work in repairing a railway track, or in repairing a highway where it crosses a railway track, can not be expected to pursue their labors, and at the same time maintain a constant lookout for an approaching train. They are passive, and are not a source of danger to the train. Those who are driving the train are active, and are handling and are in control of thei instrument of danger and mischief. The obligation or reasonable care which the law puts upon the railway company under these circumstances therefore demands nothing less than an active vigilance in favor of persons thus lawfully at work upon, the track, and the giving of seasonable danger signals to arouse their attention and.enable them to get out of the way before it is too late.”

In sections 1840-1842 it is shown that the same rule applies in favor of the servants of a contractor, or persons engaged in loading or unloading cars, or receiving mail or express.matter. In section 1846 the care required in moving trains through cities and towns is pointed out, and it is laid down to be negligence, when a train is moved backwards, not to have a person keeping a lookout. See, also, 2 Shear-man & Redfield on Negligence, sections 457, 458. The case of Illinois Central Railroad v. Dick, 91 Ky., 434, 11 R., 861, 12 R., 772, 15 S. W., 665, is not inconsistent with the above. In that case Dick was only a licensee to cross the track. For his own convenience he left the usual way of crossing, and was walking along the track. He had no right to. be where he was. At least, there is nothing in the case to show that his presence there should have been anticipated, or that it was a place at which the servants of the company should have been on the outlook for persons.. The appellee was in the discharge of his duties in going from the inspection of the train to the toolhouse and was- at a place at which the presence of persons on the track might be anticipated. While he was not at work on the track, he was at work for the defendant, and was lawfully on the track in the course of his employment, and is as much within the principle of the rule as if laboring on the track. Whether he was guilty of contributory negligence was a question for the jury.

It is earnestly insisted, also, that the court erred in instructing the jury that appellee could not recover if but for his negligence the injury would not have happened, unless appellant’s agents in charge of the engine and tender knew, or could by ordinary care have known, of the peril in which his negligence had placed him, and thereafter failed to observe reasonable care to avoid the injury which ensued. The instruction, of the court followed the rule announced in an opinion by Judge Crenshaw, in the year 1856, in L. & N. R. R. C., v. Yandell, 17 B. Mon., 598. It was reaffirmed in an opinion by Judge Robinson in L. & N. R. R. Co. v. Collins, 2 Duv., 114, 8 Am. Dec., 486, and L. & N. R. R. Co. v. Robinson, 4 Bush, 507. These cases have since been followed by the court so often that the question is no longer open. L. & N. R. R. Co. v. McCoy, 81 Ky., 411, 5 R., 397; L. & N. R. R. Co. v. Earl, 94 Ky., 374, 15 R, 384, 22 S. W., 607; Cahill v. R. R. Co., 92 Ky., 345, 13 R., 714, 18 S. W., 2; L. & N. R. R. Co. v. Schuster, 10 Ky. Law Rep., 65, 7 S. W., 874; L. & N. R. R. Co. v. Krey, 16 Ky. Law Rep., 797, 29 S. W., 869; L. & N. R. R. Co. v. Hackman, 17 Ky. Law Rep., 81, 30 S. W., 407; R. R. Co. v. Lewis, 18 Ky. Law Rep., 957, 38 S. W., 482; Crawley v. R. R. Co, 21 Ky. Law Rep., 1435, 55 S. W., 434; Flynn v. Ry. Co., 110 Ky., 662, 63 S. W., 490; Gunn v. Felton, Receiver, 108 Ky., 565, 57 S. W., 15. To the same effect, see l Thompson on Negligence, secs. 230-232; Inland, etc., Co. v. Tolson, 139 U. S., 551, 11 Sup. Ct., 653, 35 L. Ed., 270; Grand Trunk Railway v. Ives, 144 U. S., 408, 12 Sup. Ct, 679, 36 L. Ed., 485.

In towns and cities'where the presence of persons on the! track of the railroad may be rightfully anticipated, a due regard for human life requires that a lookout should be maintained in the operation of engines' and trains^. This has been often declared. The place where the injury sued for occurred was in a town, and at a place which was used not only by the numerous employes of appellant, but by other persons, in passing from the station to the coalyards; and from one portion of the town to another. The presence of persons on or about the track at the point where the injury occurred should reasonably have been anticiapted, and it was incumbent on those operating the engine in question to keep a lookout. Otherwise all the care would be required of those on the track, and none would be required of those operating the train. Instructions embodying the view of the law insisted on for appellant have been held erroneous by this court as> to persons rightfully on the track at such places, on the ground that they placed all the care on the person injured. L. C. & L. R. R. v. Goetz’s Admr., 79 Ky., 442, 3 R., 221, 42 Am. Rep., 227; L. & N. R. R. Co. v. Clark’s Admr., 105 Ky., 571, 20 R., 1375, 49 S. W., 323. In view of the character of the place where the accident occurred, and the fact that the deceased was not a trespasser, the court properly qualified the instruction on contributory negligence as’ indicated.

It is further urged that appellee and the men in charge of the engine were fellow servants, being all engaged in the operations of the yard, and that, at any rate, appellant is not liable, except for the gross negligence of its man in charge of the engine. The engine was run from the coal bin to the side track by a man employed for that purpose to take charge of the engines in the yard, and known as the “hostler.” There is much conflict in the authorities as to who are fellow servants, but the rule in this State has been steadily maintained from the beginning. In L. & N. Railroad Co. v. Collins, 63 Ky., 114, 87 Am. Dec., 486 — the first case on the subject— where a laborer on an engine in the yard was injured by the negligence of the man in charge of the engine, this court said: “The only consistent or maintainable principle of the corporation’s responsibility is that of agency: ‘Qui fadt per attum fadt per se.’ It is therefore responsible for the negligence or unskillfulness of its engineer, as its. controlling agent in the management of its locomotives and running cars, and that responsibility is graduated by the classes of persons injured by tbe engineer’s neglect or want of skill. As to strangers, ordinary negligence is sufficient; as to subordinate ¡employes associated with tbe engineer in conducting tbe cars, tbe negligence must be gross; but as. to employes in a different department of service; unconnected with the running operations, ordinary negligence may b.e sufficient. Among common laborers, constituting a distinct class, all standing on the same platform of equality and power, and engaged in a merely incidental, but independent, service, no one of them, as between himself and his coequals, is the corporation’s agent; and therefore it is not, on the principle of agency or otherwise, responsible for damage to one of them resulting from the act or omission of another of them, although, each of the company’s employes would be its agent as to entire strangers to it.” This case, and a number of others following it, were reviewed and approved in L., C. & L. Railroad Co. v. Cavens, 72 Ky., 559, and still later in Greer v. L. & N. Railroad Co., 94 Ky., 169, 14 R., 876, 21 S. W., 649, 42 Am. St. Rep., 845, and Illinois Central Railroad Co. v. Hilliard, 99 Ky., 684, 18 R., 505, 37 S. W., 75. In the last case the conductor of a train was injured by the negligence of a car inspector, and it was insisted that thé jury should have been instructed that they were fellow servants, or that the company was at least liable only for the gross negligence of the car inspector. The court held otherwise, and said: “In the first place, the person employed at Mound Station to inspect each car of a train, and ascertain if it is in a safe condition, was not a fellow servant of plaintiff, in the sense of being upon a common footing, and agents of each other. They acted in different spheres, and neither could or was required to know whether the other was properly doing his duty. In the second place, it would have been improper to require the jury; to believe the inspector was guilty of gross negligence. The simple inquiry was, as they had been instructed, whether the company, through its inspector, used ordinary care in examining the cars, so as to ascertain whether thei ladders attached to each were in a safe condition, for it was the legal duty of the company to guard against every source of danger they could, by the exercise of that kind and degree of care, foresee and prevent; and, while a railroad company can not be required to insure the safety of a train, it is bound to make a reasonable, proper, and careful examination of each car.” In L. & N. Railroad Co. v. Davis, 14 Ky. Law Rep. 716, a switch engineer in a railroad yard was held not to be a fellow servant of a switchman and coupler in the yard. In L. & N. Railroad Co. v. Moore, 83 Ky., 675, 7 R., 646, a fireman while acting as engineer, was held to be engineer for the time, and not to be a fellow servant of the brakeman. The same rule has been applied as between the crews of different trains, and it seems to us to be a very unsubstantial distinction between the engineer who runs an engine in the yard, and one who runs it at other stations along the road, as the fireman usually does in switching. Appellee had no control of the engineer in charge of this engine. He had nothing to do with the running of the trains or the running operations of the road.. He was engaged in a distinct department, his only duty being to inspect cars.

Lastly, it is insisted that the verdict is excessive. Appellee is thirty-four years of age, and was earning a dollar a day. He has lost one arm, and does not appear to have received other permanent injury. In no case before this court has it ever sustained so large a verdict for such an injury, and we are all of opinion that the verdict is excessive, andi that for this reason a new trial should be granted. We see no other error in the record.

Judgment reversed and cause remanded for further proceedings not inconsistent with this opinion.

Chief Justice Burnam and Judges O’Rear and Barker dissent, because peremptory instructions were not given. Petition for rehearing by appellee overruled.