33 Ky.L.Rptr. 850
Court of Appeals of Kentucky.
LOUISVILLE & N. R. CO. v. BERRY.
June 20, 1908.
ACTION: Reversed and remanded.


Appeal from Circuit Court, Knox County.
"Not to be officially reported."
Action by W. F. Berry against the Louisville & Nashville Railroad Company.
From a judgment for plaintiff, defendant appeals.

CLAY, C.
Appellee, W. F. Berry, instituted this action in the Knox circuit court against appellant, Louisville & Nashville Railroad Company, to recover damages for injuries alleged to have been due to its negligence in running a hand car over him. The jury returned a verdict in favor of appellee in the sum of $2,150, and the railroad company appeals.

Appellant asks for a reversal on the following grounds: First, the admission of incompetent evidence; second, errors in giving and refusing instructions; third, the verdict is not sustained by the evidence; fourth, the verdict is excessive. Before passing upon these questions, it will be necessary to give a brief statement of the facts.

Corbin is a town of 4,000 inhabitants. Appellant's depot is located near Center street. On each side of the depot, but some distance therefrom, a street is located. As appellant's two main tracks approach Corbin from the north, they diverge as they get near to the depot. Then one track passes to the east, and the other to the west of the depot. After passing around the depot, they converge as they approach Center street. The main track on the east is called the "C. V." track, while the main track on the west is known as the "K. D." track. Connected with each of these main tracks is a switching track; thus making two tracks on each side of the depot. There was testimony to the effect that the public in general had been accustomed for a long time to use the railroad tracks between Center street and the depot in going to and from the depot, and that this customary use of the tracks was with the knowledge and acquiescence of the company. On the occasion of the accident appellee had been to the express office, which is located in appellant's depot. After attending to the business which he had in hand, he started toward Center street between the "C. V." and "K. D." tracks. As he approached Center street, the space between these tracks became gradually less. At this moment a freight train approached on the "K. D." track. Appellee, claiming that he felt unsafe between the tracks, moved over on the ""C. V." track, and had proceeded southward about 20 or 30 steps, when he was struck from the rear by appellant's hand car. He also claims that he looked to the north before he crossed over to the "C. V." track, and did not see the hand car. Appellee alleges that he was badly bruised across the small of his back; that his hip was dislocated and his knee turned in; and that his thigh and knee were bruised all the way down. The other knee was cut 2 1/2 inches to the bone. He was also bruised on the back of his hand and on the side of his neck, and had some little bruises on his head. His thigh bone was pulled out of the socket. He suffered for a long time from his injuries, and is still suffering from them.

Without detailing the facts more at length, we shall consider appellant's objections to the evidence. The court permitted the men in charge of the hand car to testify that the foreman told them to make a quick trip. This evidence was clearly inadmissible, as the mere direction to make a quick trip cannot be considered as evidence of excessive speed. The court also permitted several witnesses to testify as to the amount of travel on the various streets of Corbin. This was irrelevant to the issue. On this point the only issue was the amount of travel on appellant's tracks between Center street and the depot, and the evidence should have been confined to this issue alone. The court further permitted certain witnesses to testify to the incompetency and inexperience of those in charge of the hand car as well as to the defective condition of the brakes on the hand car. It is true that this court has laid down the rule that a trespasser upon the tracks of a railroad company who is injured by the company's train cannot complain of the size or weight of the train, or of the insufficiency of its machinery or brakes, or of the fact that it was improperly manned. Whenever a lookout duty is imposed, we are of the opinion that the further duty to have the train properly manned and equipped is also imposed. A lookout duty would avail nothing, if, because of incompetent men or defective machinery and appliances, the train or car could not be stopped. We therefore conclude that the court did not err in admitting the testimony complained of.

The court instructed the jury as follows:
"No. 1. If you shall believe from the evidence that the plaintiff was walking on or near the defendant's railroad track between its station and Center street in Corbin, Ky., and that the people of Corbin and vicinity, as well as the traveling public generally, had been in the regular habit of walking along and over the defendant's railroad tracks at that point and along the same between its depot and express office and Center street in Corbin, Ky., for many years, and for a time sufficient as that the agents and servants of defendant and its superintendent in charge of its depot, grounds, and railroad tracks at that point knew of such regular and habitual use of the public generally, and had known same before the time complained of herein, and that plaintiff moved from the space between the defendant's railway track on to another railroad track in order to avoid a passing freight train, and that while such train was passing, and while he was on such other railroad track, the defendant by its agents and servants ran a hand car up behind plaintiff at a time when he was not noticing and did not know of the approach of such car, and could not hear the approach thereof by reason of the noise made by such passing freight train, and that the agents and servants of defendant in charge of such hand car saw the plaintiff, and saw and understood that he did not know of the approach of such hand car in time to have stopped such hand car and in time to have thereby prevented its running over or against the plaintiff, or that they might have seen and understood that the plaintiff did not know of the approach of such hand car, by the exercise of ordinary care and prudence, in time to have avoided running the same against him, or that the agents of the defendant saw the plaintiff and saw and understood that he did not know of the approach of such hand car, and that the brake on such car was defective or broken and useless, so as that those in charge of the car after they had seen the peril of the plaintiff in time to stop the same and prevent his injury, if they did so do, but could not do so by reason of the defect of the brake on the car, then you ought to find for the plaintiff such a sum in damages as is a fair equivalent in money for the mental and physical pain, if any, as it is reasonably certain from the evidence that he will hereafter endure by reason of such injury, if any, and a fair equivalent for the permanent impairment of his ability to earn wages by work or labor as is the proximate result of his injuries, and such a sum as the plaintiff may have expended for medication, not exceeding $150 in that behalf, and if you shall further believe from the evidence that the agents and servants of the defendant in charge of such hand car were grossly negligent in running the same against the plaintiff, if they did so do, then you may in your discretion give the plaintiff a such further sum by way of punitive damages, and by way of punishment for the wrongs and injuries done the plaintiff, if any, as may seem just and proper to you, not exceeding in all the sum of $10,000 for damages and $150 for medication, the amount claimed in the petition.

"No. 2. (a) Gross neglect, or gross negligence, within the meaning of the terms as used in instruction No. 1, above, is the absence of slight care. (b) Ordinary care and prudence, within the meaning of the terms as used in instruction No. 1, above, is such care as an ordinarily prudent man usually exercises under the same or similar circumstances.

"No. 3. Unless you shall believe as required by instruction No. 1, above, you will find for the defendant; or if you shall believe from the evidence that plaintiff went upon the railroad tracks of the defendant at a place where he knew the defendant was in the habit of running its cars and trains, and that while walking thereon he saw or heard the approach of the hand car mentioned in evidence in time to have stepped off the track and prevented the injury and failed to do so, then he was himself negligent, and you ought to find for the defendant.

"No. 4. If you all agree upon a verdict you will sign it by your foreman. If you do not all agree, but as many as nine or more of you and less than twelve can agree, then you may bring a verdict, but those who bring it must sign it. Less than nine of you cannot bring a verdict."

It will not be necessary to discuss these instructions at length. Suffice it to say that they did not impose upon appellee the duty of exercising ordinary care for his own safety. Instruction No. 1 authorizes the jury to give punitive damages. This instruction was erroneous, because there was no evidence tending to show that appellant was guilty of gross negligence. Upon the next trial the court will instruct the jury as follows:
"No. 1. If you believe from the evidence that the defendant's tracks between Center street and its depot in Corbin, Ky., were habitually used by the public in going to and from Center street to its depot, with the knowledge and acquiescence of the defendant, then it was the duty of the defendant to use ordinary care to discover the presence of such persons on its said tracks, and to use ordinary care to avoid injuring them after discovering their peril. And if, upon the occasion in question, you believe from the evidence that while plaintiff was walking along defendant's said tracks the defendant, its agents, or servants failed to use ordinary care to discover the presence of plaintiff, or failed to use ordinary care to avoid injuring plaintiff after the discovery of his peril, and that by reason of such failure, if any, on the part of the defendant, its hand car was run against plaintiff, and plaintiff was thereby injured, you will find for the plaintiff. If, however, you believe that plaintiff went upon defendant's tracks at a time and place when defendant, by the exercise of ordinary care, could not have discovered plaintiff's peril in time to avoid injuring him, you will find for the defendant.

"No. 2. It was the duty of the plaintiff in going upon and walking along defendant's tracks to exercise such care as may be usually expected of an ordinarily prudent person to learn of the approach of defendant's cars or hand car, and keep out of their way; and, if he failed to exercise such care, and but for this would not have been injured, the law is for the defendant, and the jury should so find.

"No. 3. If you find for the plaintiff, you will award him such damages as will fairly compensate him for his physical and mental suffering, if any; for his reasonable physician's and medical bills, if any, not exceeding the sum of $150; and for the permanent impairment, if any, of his power to earn money that may have directly resulted from his injuries, but not exceeding in all the sum of $10,000--the amount claimed in his petition.

"No. 4. Ordinary care, within the meaning of these instructions, is such care as an ordinarily prudent person usually exercises under the same or similar circumstances."

In view of the conclusion of the court, it will be unnecessary to discuss the other errors assigned.

For the reasons given, the judgment is reversed, and cause remanded for a new trial consistent with this opinion.

Ky.App. 1908.
LOUISVILLE & N. R. CO. v. BERRY.
111 S.W. 370, 33 Ky.L.Rptr. 850


     

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