32 Ky.L.Rptr. 1371
Court of Appeals of Kentucky.
March 20, 1908.
ACTION: Affirmed.

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

Appellant's intestate lost his life in the switchyards of appellee in Corbin, Ky., and he brought this action to recover damages, alleging that his intestate was killed by the negligence of appellee's servants in the movement of its train and the placing of its cars in the switchyards. The jury returned a verdict in behalf of appellee. Appellant seeks a reversal, first, because, as alleged, the court failed to properly instruct the jury; second, upon the ground of newly discovered evidence.

The testimony showed that appellant's intestate was something over 16 years of age, a farmer boy, and had never worked in or about a railroad or its yards but 4 or 5 days previous to his death; that he was employed to oil cars for appellee; that he was performing this labor by carrying his bucket of oil and following the car inspector, who ascertained the wheels that needed oiling and left the lid up, so that deceased would know what wheels needed to be oiled. He was working on the night shift and in the middle yard of appellee. There were 10 or 12 tracks in the yard about 8 feet apart, leaving plenty of room for the oiler and inspector to work in safety. All these tracks connected with what is known as the "drill" track, which made connection with the main track. Tracks 3 and 4 came together about 30 feet before entering the drill track. On the night that appellant's intestate lost his life there had been some cars pushed back on to track 3 and left standing very close to where tracks 3 and 4 connected. Appellant's proof showed that Jones was oiling these cars on track 3 on the side next to track 4, and was found dead, between 10 and 11 o'clock, by the side of track 3 at the end of the cut of cars nearest to where the connection was made with track 4. Shortly before his death the switch engine crew moved the engine onto track 4, and one of the persons in charge discovered Jones oiling the cars on track 3 as they passed in with the engine. The bars, or rounds, on the tender, struck the side or end of the car on track 3. They passed in and coupled onto a caboose of a train on track 4, backed out into the drill track, kicked the caboose onto another track, and again entered track 4 and pulled out 7 or 8 freight cars. About the time they came out upon the drill track with these cars they learned that Jones was dead. They went to him, and found him lying near the wheels next to the point where tracks 3 and 4 connect. Some of the splinters that had been knocked off of the corner of the car by the collision with the tender were on his breast, his hat and lantern were near him, and his oil bucket was 8 or 10 feet south of him toward the drill track. Appellant's contention is that by reason of the negligence of appellee's servants in placing the cars on track 3, and leaving them so near its connection with track 4, he was struck by the switch engine and killed while he was engaged in his work of oiling cars on track 3. Appellee's proof tended to show that he was not engaged in oiling cars on track 3; that he had not been directed to oil cars upon that track; that he had, a few minutes before his death, been oiling cars on track 4; that he and another oiler by the name of Loyd had followed their inspectors, one on each side of track 4, and finished at the north end of that train. Appellee's contention is that he had negligently attempted to swing on to this train of cars as they were pulled out with the switch engine, and was knocked off of it and killed when he came in contact with the cars on track 3, or that he was carelessly and negligently walking through the yards and was struck by a moving train and killed.

The court submitted these issues to the jury in the following two instructions:
"Gentlemen of the Jury: (a) If you shall believe from the evidence that the defendant, by its agents and servants, placed a car or cars on its yard at Corbin, Ky., upon track No. 3 so close to track No. 4, and so close to the point of intersection of track No. 3 with track No. 4, and in such a position on track No. 3 as that cars moving on track No. 4 and passing the cars aforesaid on track No. 3 would not 'clear,' or would not leave sufficient space for one to work beside said car or cars on track No. 3 while oiling the journals of said cars with reasonable safety from said moving cars on track No. 4, as aforesaid, and that the plaintiff's intestate, William Jones, while in the performance of his duty as car oiler, and while at work in oiling the car or cars on track No. 3, or in going from one car to another for the purpose of prosecuting his work as oiler, as aforesaid, was caught between the moving cars on track No. 4 and the car or cars so placed as above set out on track No. 3, if any, and his head so crushed as that he died thereby, then the law is for the plaintiff, and you should so find; (b) unless you shall further believe from the evidence that the plaintiff's intestate could have prevented his being caught and crushed between the cars by the exercise of ordinary care and prudence on his part after he discovered his danger therefrom, if he did discover it.

"(2) Unless you should believe from the evidence as required by section 'a' of instruction No. 1 above, then the law is for the defendant, and you should so find; or, if you shall believe from the evidence that plaintiff's intestate carelessly or negligently climbed upon the moving engine or cars in defendant's yard and upon the side thereof, and while being carried along by said moving engine or cars on the side thereof was caught and crushed against another car, or fell therefrom and was hurt, so that he died, then you should find for the defendant."

Appellant complains and says that the court erred in failing to tell the jury, in substance, that deceased was only required to exercise ordinary care, taking into consideration his age and experience; but the court's instructions were as favorable to him as if that had been incorporated in them. By the instructions given by the court deceased was required only to avoid his injury after he discovered his danger, if he did discover it. From the evidence our opinion is the preponderance sustained appellant's theory as to the cause of his intestate's death, but we are not authorized to reverse a case on a mere preponderance of the evidence. To authorize a reversal upon this ground the verdict must have been flagrantly against the weight of the evidence.

Appellee, for the purpose of showing that Jones was not engaged in oiling cars on track 3, introduced the keeper of a restaurant situated near the south end of the yards. He stated that he recognized the boy that was killed as a person who had entered his restaurant 10 or 15 minutes before he was killed to obtain a lunch; and it also introduced two of its inspectors, who testified that 15 or 20 minutes before Jones was killed they were inspecting the cars on track 4, and Jones and the other oiler (Loyd) followed them and oiled the journals of the cars. Appellant and his counsel filed their affidavits and the affidavit of a boarding-house keeper, at which Jones boarded. The affidavit of the lady who kept the boarding house stated that Jones ate supper at her place, and that she fixed up his midnight lunch, showing that there was no necessity for him to enter this restaurant for his lunch, because he had it with him. Appellant and his counsel stated in their affidavit that they were very much surprised at the statements of the two inspectors; that they had informed counsel for appellant shortly before entering the trial that they did not see deceased on that night; that they were not working in that yard, but in another switchyard of appellee, and until they testified they did not know that there was another oiler in the yard by the name of Loyd, and they had learned since the trial that Loyd was in Clay or Leslie county; and that they had been informed by a person, giving his name, that Loyd would state that he was not in the yards that night when Jones was killed, and, if given an opportunity, they could show that the two inspectors named were not in the yards that night. They did not file the affidavit of Loyd, for the reason they had no opportunity to get it during that term of court, nor the affidavit of any person who would say that the inspectors were not in the yards that night as stated by them, nor does the record show that appellant asked the court for a continuance after the inspectors were introduced upon the ground that they were surprised at the testimony of these inspectors. Under this state of facts we are of opinion that the court did not err in refusing to grant appellant a new trial. Appellant should have, when this evidence was introduced which surprised him, moved the court for a continuance of the trial, and should not have taken the chance of a verdict, or, failing in that, to apply for a new trial.

Appellant also filed the affidavit of one of the jurors to the effect that another juror had imposed upon the jury by presenting a map showing the switchyard, which influenced them in arriving at their verdict. Appellee filed a counter affidavit of one of the jurors upon this question. "We cannot discover any case where the jurors have consented to the verdict, and where they have been permitted afterwards, by their affidavits, for the purpose of impeaching or setting aside their verdict, to explain the train of reasoning, or the grounds, either of law or fact, assumed by them, inducing that consent. Such a practice, if tolerated, would be extremely dangerous. It would create a violent temptation for the losing party to tamper with the jurors, and by private conversations with them after the trial he might, and frequently would, impose, both on the jurors and the court, the afterthoughts of the jurors for their opinions in the jury room."

Finding no error prejudicial to appellant, the judgment of the lower court is affirmed.

Ky.App. 1908.


108 S.W. 865, 32 Ky.L.Rptr. 1371


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