Case One of Two
Court of Appeals of Kentucky.
LOUISVILLE & N. R. CO. v. PEARCY.
Oct. 22, 1909.
ACTION: Reversed and remanded.


Appeal from Circuit Court, Knox County.
"Not to be officially reported."
Action by John Pearcy against the Louisville & Nashville Railroad Company.
Judgment for plaintiff. Defendant appeals.

HOBSON, J.
John Pearcy was the middle brakeman on a local freight train of the Louisville & Nashville Railroad Company between Middlesboro and Corbin, Ky. There was also on the train a head brakeman, a rear brakeman, and a negro who was learning the road. At Ferndale station they took on a car, the coupling apparatus of which at one end was defective, the defect being that the bumper dropped down below its proper position, and in order to couple this car, one brakeman had to hold up the bumper while the other coupled it. After this car was put in the train it went on its way, stopping at the different stations as usual until they reached Gray's station, some 35 miles further on. They had an order to meet another train there, and the conductor ordered the negro, after they stopped, to go ahead and flag down the other train, but the negro did not go as far ahead as the engineer thought necessary, and he refused to pull out on the main track, as the conductor had directed, for the purpose of going in on a side track, and getting out a car that stood on it. The conductor had ordered the head brakeman and Pearcy to attend to this while he went back to the rear of the train to send the rear brakeman to the rear to flag any train that might be approaching in the rear. When the engineer refused to pull out on the main track, saying that the negro had not gone far enough, the conductor ordered the head brakeman to go forward and signal the coming train. He thereupon went forward, gave the necessary signals, and told the negro to go back and help Pearcy. The engineer pulled out on the main track, and Pearcy threw the switch and signaled the engineer back. He then went back to the switch leading to where the car was they wanted to get, and threw that switch and signaled the engineer on back. The engineer came on back slowly, and Pearcy went down to where the car was. When he got there, he found the lever of the car would have to be adjusted before the coupling could be made. He thereupon gave a stop signal, and, assuming that it would be obeyed, went to work on the lever, having his back to the approaching train. It was dark, and he suddenly discovered that the train had not stopped, and was coming upon him. He attempted to jump out, but in doing so his foot was caught, and one arm and one leg were run over. The engineer was on the right side of the engine. Pearcy was on the left side, and was passing the signals to the engineer through the fireman. He brought this suit against the railroad company to recover for his injuries, and having recovered $12,500, the railroad company appeals.

The above are the facts as stated by the plaintiff, and as the proof for him conduced to show. The engineer testified that he got no stop signal from the fireman, or any one else, and that he was backing as he had been signaled to do when the injury occurred. It was dark, and nothing could be seen except the light of the lanterns by which the signals were given. The engineer also testified that there was a man on each side with a lantern in his hand, while Pearcy says that there was no one there by him. The negro who had been ordered back by the rear brakeman to help Pearcy was not introduced on the trial, and the proof does not show where he was.

Much evidence was introduced on the trial as to the car picked up at Ferndale, and as to the coupling being defective, it being claimed by the plaintiff that one reason he could not see the engineer was that this car had been left attached to the engine by the direction of the conductor, on account of the difficulty in coupling and uncoupling it. All of this evidence should have been excluded from the jury. A railroad company has a perfect right to make couplings with more or less cars attached to the engine, and the reason why a particular car is attached to the engine is wholly immaterial. Pearcy knew all about the car, and understood the situation perfectly. All the testimony relating to this car, including the testimony as to what the conductor had said, should have been excluded from the jury. There was also evidence to the effect that there was a pile of timber which obstructed the view between Pearcy and the engineer, and this was also given as a reason why he was signaling from the fireman's side, as the track was on a curve, and the timber came in between him and the engineer. The railroad company has a right to pile timber along its tracks, and the fact that this timber obstructed the view was immaterial, except as showing why the signals were given on that occasion as they were. The court on another trial will so tell the jury. There was much evidence about the rules of the company. Where the rules are in writing, the writing should be introduced, for the written or printed rule is the best evidence. The rear brakeman had nothing to do with the coupling of the cars, as he had been sent back to flag the train in rear, and no evidence should have been admitted as to his being intoxicated, because nothing that he did or omitted to do had anything to do with the accident. The court at the conclusion of the trial excluded the evidence as to the car picked up at Ferndale, as to Biscoe's being intoxicated, and as to the timber piled on the right of way, but on another trial it will not be admitted, except as above stated.

Whether Pearcy should have gone in to work at the lever after he gave the stop signal, and before he knew that it was obeyed, is a question for the jury. The engineer had been running by his signals; he had obeyed all the signals which he had given; the train was running very slowly; and what a man of ordinary prudence would do under the circumstances would depend somewhat upon the custom of doing the business. Time is of great importance in the railroad business. Brakemen must necessarily discharge their duties as promptly as they can, and we conclude that it should be left to the jury to determine whether Pearcy used ordinary care in going in as he did. The fireman in effect testified he received a stop signal from Pearcy, and passed it to the engineer. In view of this evidence we cannot say that a peremptory instruction should have been given on the ground that the engineer did not receive the signal which Pearcy gave. The case is here on all the evidence.

The court gave the jury these instructions: "(1) If you shall believe from the evidence that the plaintiff, John Pearcy, on the occasion mentioned in the evidence in this case, was run over and injured by defendant's train or engine, whereby he lost a leg and an arm, as exhibited to the jury, and you shall further believe from the evidence that said injuries were caused by the gross carelessness or the gross negligence of the defendant's agents and servants superior to plaintiff then and there controlling, managing, and operating the said train or engine, you shall find for the plaintiff, but unless you shall believe from the evidence that the said injuries to the plaintiff were caused by the gross carelessness or gross negligence of the defendant's aforesaid agents or servants, in the control, management, or operation of said train or engine, you should find for the defendant. If you find for the plaintiff, you should find for him such damages as you may believe from the evidence he has sustained, and in estimating the amount of such damages, you should take into consideration the age and situation of the plaintiff, his earning capacity and its probable duration, his bodily suffering, and mental anguish, resulting from the injuries received and the loss sustained by the want of the limbs injured, and the extent to which he is disabled from making a support for himself by reason of the injuries received, and you may, in addition to such compensatory damages, find punitive damages in your discretion, not exceeding, however, for all injuries complained of, $25,000, the amount claimed in the plaintiff's petition. (2) Although you may believe from the evidence that the plaintiff was injured through the gross carelessness or gross negligence of the defendant's aforesaid agents or servants, yet if you shall further believe from the evidence that the plaintiff, by his own carelessness or negligence at the time of his injury, contributed to the same, and that but for his said carelessness or negligence he would not have been injured, you should find for the defendant. (3) Gross negligence, in the meaning of these instructions, is the absence of slight care. (4) The defendant is not the insurer of the safety of its employes, and the plaintiff in accepting the employment as brakeman assumed all the ordinary risks incident to said business."

There was nothing in the evidence to show any negligence on the part of the conductor. The fireman and the brakeman were fellow servants. As death did not result, the defendant was not liable, unless there was gross negligence on the part of the engineer. In lieu of the first clause of instruction No. 1 the court should have told the jury that, if they believed from the evidence that the engineer operating the engine in question received a stop signal, and by gross negligence failed to obey it, and thereby caused the plaintiff to receive the injuries sued for, they should find for the plaintiff. In lieu of the second clause of the instruction he should have told the jury that, unless they believed from the evidence that the engineer received a stop signal, and by gross negligence failed to obey it, they should find for the defendant. The measure of compensatory damages given in instruction 1 is erroneous. On another trial the court will define the measure of compensatory damages as indicated in these cases. In lieu of the second instruction the court will tell the jury that it was incumbent upon the plaintiff to exercise such care to keep out of danger as may be reasonably expected of a person of ordinary prudence situated as he was; and if he failed to do this, and but for such failure, he would not have been injured, they should find for the defendant, although there was gross negligence on the part of the engineer as set out in No. 1. By another instruction the court should tell the jury that, although the plaintiff gave a stop signal to the fireman, still if the fireman did not pass it to the engineer, the defendant is not liable.

Judgment reversed, and cause remanded for further proceedings consistent herewith.

Ky.App. 1909.
LOUISVILLE & N. R. CO. v. PEARCY.
121 S.W. 1037


Case Two of Two
140 Ky. 677
Court of Appeals of Kentucky.
LOUISVILLE & N. R. CO. v. PEARCY.
Nov. 22, 1910.
ACTION: Affirmed.


Appeal from Circuit Court, Knox County.
Action by John Pearcy against the Louisville & Nashville Railroad Company.
Judgment for plaintiff, and defendant appeals.

CARROLL, J.
The facts of this case are quite fully stated in the former opinion, that may be found in 121 S. W. 1037, and we will only restate such of them as appear to be necessary to understand the alleged errors relied on by counsel for appellant as sufficient to warrant a reversal of the judgment against it.

Premising that the only negligence complained of consisted in the failure of the engineer to stop in obedience to a signal and in running at too high a rate of speed, briefly, the evidence for appellee was to the effect that, when the engine went in on the house track to get the cars there standing and put them in the train, there was a car attached to the tender of the engine, and three cars standing on the house track coupled together; that when he opened the house track switch, for the purpose of letting the engine and car attached thereto in, he was then standing on the engineer's side of the engine, and gave him the signal to back; that in obedience to this signal the engineer backed in on the house track; that appellee then crossed over on the fireman's side of the engine, and ran ahead of the engine down to the point on the house track where the cars to be coupled were standing; that when he reached these cars a hasty examination disclosed that the coupler was not in proper working order, and he then stepped out from the track on the fireman's side and gave what is called a "steady signal"; that after giving this signal he again went to the coupler and tried to arrange it, when he found that it would take more time than he anticipated, and upon learning this he again stepped out from the track on the fireman's side and gave the stop signal, the engine at that time being about 500 feet from him; that when he gave the stop signal he heard the engine shut off steam, and, supposing it would stop in obedience to his signal, he again went back to the coupler for the purpose of putting it in condition to make the coupling and was engaged in this work about a minute, when he suddenly saw the car attached to the engine coming towards him at the rate of about eight miles an hour; that upon this discovery he attempted to get off the track, when he stumbled and fell, receiving the injuries complained of.

The testimony for the appellant is in substance that there was no car attached to the engine when it went in on the house track; that the three cars standing on the house track were not together, one of them being by itself and the other two about three car lengths off; that the engineer, in obedience to the signal to back in on the house track, did so; that after this, and before the tender of the engine came in contact with the first car standing on the house track, the fireman received a steady signal, and transferred it to the engineer, and within a moment or so afterwards a coupling was made to the first car, and then another signal to back was received by the fireman, who transferred that to the engineer, and in obedience to this signal the engine, with the car that had been coupled onto it, backed to where the other two cars were standing, making that coupling; that the engine at no time was running more than four miles an hour, and that no signal to stop was received either by the fireman or engineer; that the appellant was injured when the second coupling was made.

It will be observed that there are several material points of difference in the testimony for appellee and appellant. According to appellant's theory, the engine was not moved at a speed exceeding four miles an hour, and no signal to stop was received by either the fireman or engineer, and two couplings were made--one to the first car, and the other to the two cars standing some distance from it; while the theory of appellee is that a signal to stop was given, and in obedience to it the steam shut off, that only one coupling was made or attempted to be made, as all the cars on the house track were standing coupled together, and when this coupling was made the engine was backing at a speed of about eight miles an hour, and that he was injured when the first and only coupling was made or attempted to be made. The petition did not specify the negligence complained of, merely charging that appellee, "while in the line of his duty and under the direction and order of his superiors in that employment, who were the servants of the defendant, he was by and through the gross negligence of the defendant, its agents and servants and employes other than and superior to him in charge of that train, run down and run over by said train." So that, under the averments of this petition, the appellee had the right to rely for a recovery upon any negligent acts of the engineer, whether they consisted in failing to stop in obedience to a signal or in running the train at too high a rate of speed to safely make a coupling.

The principal contention of counsel for appellant is that the peremptory instruction requested by it should have been given. The argument in support of this is that there was a total failure to show that the engineer received any signal to stop. It is true that the engineer testifies positively that he did not receive any signal to stop, from the appellee, or the fireman, or any one else, and that the fireman also testifies that he did not receive from the appellee, or any other person, any signal to stop, nor did he give such signal to the engineer. This being so, it is said that, although the appellee gave the signal to stop to the fireman, and although the fireman did receive this signal, yet, if he failed to transfer it to the engineer, the company is not responsible, because the negligence that resulted in the injury was due solely to the negligence of the fireman in failing to transfer the stop signal to the engineer; and as the fireman and the appellee were fellow servants, the fireman's negligence cannot be attributed to the railroad company, nor can his negligence be a ground of recovery.

It is said in the former opinion that: "The fireman and the brakeman were fellow servants. And, as death did not result, the defendant was not liable, unless it was gross negligence on the part of the engineer." And this statement of the law of fellow servants must control this particular case. It would there fore follow that if there was no evidence, direct or circumstantial, from which it could be reasonably and fairly inferred that the fireman received and transferred the signal to stop to the engineer, and this was the only ground of negligence upon which a recovery could rest, the case for the appellee must fail. But it is also said in the former opinion that: "The fireman in effect testified he received a stop signal from Pearcy and passed it to the engineer. In view of this evidence we cannot say that a peremptory instruction should have been given, on the ground that the engineer did not receive the signal which Pearcy gave him." We have carefully examined the evidence of the fireman on the first trial with his evidence on the trial from which this appeal is prosecuted, and there is no substantial difference in his testimony. If there was no other reason upon which to justify the action of the court in refusing to direct a verdict for appellant, we might well leave the contention that a peremptory instruction should have been given with this statement.

Passing for a moment the evidence as to excessive and dangerous speed not brought out in the first trial, the court in the former opinion was evidently induced to make the statement that the fireman testified in effect that he had received the stop signal, because the circumstances showed that he had received it and transferred it to the engineer. Among these circumstances that appeared in the first trial, as well as in this we may mention the fact that the appellee testifies that he gave the fireman a stop signal before the first coupling on the house track was made or attempted to be made, and the fireman, although denying that he received the stop signal, says that he received a steady signal before the first coupling was made, or attempted to be made, and gave it to the engineer. Appellee further testifies that when he gave the stop signal he heard the steam shut off, indicating that the fireman had received this signal and transferred it to the engineer, who in obedience thereto shut off steam; and it is shown that when steam is shut off under conditions like these it means that the engine has been stopped. And so, when analyzed, the statement of the fireman that he did not receive or transfer to the engineer a stop signal is greatly weakened by his evidence in reference to getting and transferring a steady signal at the time appellee says he gave the stop signal. In addition to this, it is further shown that the fireman out of court said to several persons that he did receive the stop signal and gave it to the engineer, who failed to observe it. It is true that these statements out of court made by the fireman are not to be taken as substantive evidence, nor as sufficient to show that the engineer did in fact receive the stop signal and fail to observe it. Their only effect would be to show that the fireman's statement that he had not received it and had not transferred it was false. In other words, if the whole case for appellee rested upon the statement made by the fireman out of court, he could not recover, as it was necessary that he should show by evidence on the trial, either direct or circumstantial, that the fireman had received the signal and transferred it to the engineer, who failed to observe it.

But the case for appellee does not depend alone upon the direct evidence of whether or not the fireman received and transferred this stop signal to the engineer. The jury had the right to believe appellee's statement that he was injured when the first coupling was made and that he gave the stop signal to the fireman, and his statement that immediately thereafter the engine shut off steam, and from this infer that the signal had been received by the engineer, especially so as the fireman said that before the first coupling was made he received a steady signal and gave it to the engineer. Upon this evidence the appellee was entitled to go to the jury. But, in addition to this, if, as appellee testifies, the engine came back at a speed of about eight miles an hour to make a coupling on a dark, rainy night, this under the evidence was in itself sufficient negligence on the part of the engineer to take the case to the jury, especially when it is kept in mind that appellee, according to his story, was injured when the first coupling was made, and that the fireman admits he received and transferred to the engineer before this coupling was made a steady signal. For, even if it be conceded that the only signal the fireman received and transferred was the steady signal, it was clearly negligence, after receiving this signal, to come back under the conditions existing eight miles an hour.

Complaint is made that appellee and other witnesses in his behalf were improperly permitted to testify that it was customary to have two brakemen assist in making a coupling, when there was no evidence of a printed rule of the company in reference to this matter. The law, as we understand it, is that, when there is a written or printed rule, it is the best evidence, and, if obtainable, should be introduced. In other words, the same principles of evidence apply to written and printed rules as do to other matters that are written or printed. But we do not understand it is necessary that all the rules and regulations of the company in practical use for the safety and government of its employes need be in writing. A railroad company may have unwritten rules and regulations, well known to its employes, and under which they may act, and by which they may be controlled. And if it was shown that an unwritten rule or custom was recognized and observed by the company and its employes, we see no reason why it would not be competent in cases like this to admit it as evidence. We do not, however, wish to be understood as holding that it would be negligence upon the part of a railroad company to fail to have two brakemen assist in making couplings. That question is not before us in this case. Nor was it made or attempted to be made a ground of negligence either in the pleadings or instructions, although both parties introduced some evidence on this subject, as they did upon the former trial. In commenting on this evidence, it is said in the former opinion: "There was much evidence about the rules of the company. Where the rules are in writing, the writing should be introduced; for the written or printed rule is the best evidence." As the trial court was not directed to exclude evidence that it was the custom and practice to have two brakemen assist in making couplings like the one under consideration, it was justified in admitting it.

The instructions are also criticised. But, with the exception that the attention of the jury was called to the rate of speed at which the engine was running when the coupling was attempted to be made, and the qualifications of instruction No. 3, they conformed to the directions given in the former opinion. On the former trial it does not appear that there was any evidence as to the speed at which the engine backed to make the coupling, or, if there was, it was not brought out fully or made an issue in the case, and no instruction upon this question was given. But on the last trial there was evidence upon this point, and we think the court properly instructed the jury concerning it. The practice in respect to following on a second trial the instructions directed to be given in the opinion of this court under which it is had is this: When the trial court is directed to give on a retrial instructions indicated in the opinion, only those instructions should be given, if the evidence is substantially the same as that in the record when the opinion was delivered; but if, upon a retrial, new and authorized issues are made, or new and competent evidence is introduced, that it is proper and necessary the jury should be instructed concerning, then the court, in addition to giving the instructions directed, may submit new instructions suitable to the new issues or evidence. As it was admissible to admit evidence as to the speed of the train, so it was proper to instruct the jury upon this new issue made by the evidence.

It is argued that the instruction saying in substance that, if the engineer discovered the peril in which appellee was placed in time to avoid injuring him and failed to do so, this excused the contributory negligence, if any, of appellee, should not have been given, as there was no evidence upon which to base it. We are not prepared to say that the instruction should have been given, nor yet can it be well said that it was prejudicial. The court was evidently influenced to give it by the evidence upon the subject of signals that the engineer testified were given by some person on the front of the tender as it backed, as well as afterwards from the first car coupled to. This evidence, as well as other that it seems unnecessary to relate, tended to show that the engineer knew that appellee was going to make the coupling, and, having this knowledge, it was his duty to exercise care to avoid injuring him; and if his position was not known to the engineer, or if the engineer was confused by the signals he says he received, or there was confusion or uncertainty in his mind as to the whereabouts of appellee, the engineer should not have moved his engine until he had information reasonably sufficient to satisfy him that appellee was not in peril. And so under the peculiar facts of this case it may be said that when the engineer lost the location of appellee, or could not tell from the signals where he was, it was in effect the same as if the engineer discovered that he was in peril, and therefore it was his duty to exercise ordinary care to avoid injuring him.

Upon the whole case, and a comparison of the evidence and instructions given on the former trial with the evidence and instructions on this one, we are of the opinion that there is no error in the record prejudicial to the substantial rights of appellant.

Wherefore the judgment is affirmed.

Ky.App. 1910.
LOUISVILLE & N. R. CO. v. PEARCY.
131 S.W. 1036, 140 Ky. 677


     

Last Update Tuesday, 18-Dec-2012 01:35:27 EST

 County Coordinator
County Coordinator: Gayle Triller
Copyright © 2015 by the KYGenWeb Team. All
rights reserved. Copyright of submitted items
belongs to those responsible for their authorship or
creation unless otherwise assigned.