Louisville & Nashville Railroad v. Taaffe's Administrator , 106 Ky. 535 ( 1899 )

JUDGE GUFFY

delivered the opinion of the court.

It is alleged in the petition that the decedent, Taafe, was killed by and through the gross and willful carelessness and mismanagement of the servants and agents and employes in control of the appellant’s train, and that said-train was willfully, negligently, carelessly, and recklessly run against the said Taafe with great force and violence, wounding, bruising, crushing, and mangling him, from the effects of which he then and there died, for which plaintiff claimed damages in the sum of |25,000.

The first paragraph of the answer is a denial of negligence, carelessness, or recklessness on the part of the defendant, etc. The second paragraph is a plea of contributory negligence. The third paragraph avers that the plaintiff’s intestate so contributed to the injury by stepping upon or so near defendant’s track, in full view and hearing- of one of its approaching trains, and that said train was so close to said Taafe that it was impossible by the exercise of ordinary care by those engaged in operating the train to check or stop its progress in time to prevent said injury, that, but for such contributory negligence on the part of the decedent, the injury would not have happened.

The reply is a traverse of the answer. A jury trial resulted in a verdict for the sum of $5,000 in favor of plaintiff. Thereupon the defendant moved the court to render judgment for it, notwithstanding the verdict, which motion was overruled, and judgment rendered on the verdict.

Thereafter the defendant filed a motion for a new trial upon the following- grounds, in substance: (1) The verdict is not sustained by sufficient evidence, and is contrary to law. (2) The verdict is contrary to law. (3) The verdict is contrary to law and the evidence. (4) Damages are excessive, appearing to have been given under the influence of passion and prejudice. (5) Error of the court in overruling defendant’s motion for peremptory instruction to the jury to find for plaintiff. (6) Error of the court in overruling defendant’s motion for a peremptory instruction at the close of all the testimony. (7) Error of the court in permitting plaintiff, over defendant’s objection, to prove the number of the family of deceased. (8) Error of the court in permitting the plaintiff to prove that defendant’s track was used by persons to walk upon and across at or near the point where deceased was killed. (9) Because the court erred in refusing to give instructions A, B, C, D, E, and F asked by defendant. (10) Because the court erred in giving instructions designated and marked 1, 2, 3, 4, 5, 6, 7, 8, 9, and 10, given by the court on its own motion.

It appears from the. testimony in this case that the plaintiff’s intestate was killed by being struck by defendant’s train of cars in Sparta, not far from the railroad station. The proof in the record as to the circumstances and conditions under which decedent lost his life is conflicting, and, that being the case, there was no' error of the court in refusing the peremptory instruction asked for by the defendant, nor in overruling defendant’s motion for a judgment notwithstanding the verdict.

The testimony as to the family left by decedent vras incompetent, and should not have been permitted; but we are unable to see that it was prejudicial to the substantial rights of the defendant, and especially so as it was held in the case of L. & N. Railroad Co. v. Kelly’s Adm’r [38 S. W., 852], that the widow and children of deceased had a right -to be present in court; and, from the brief of appellant, it seems that the widow and children in this case were present in court.

It seems to us that so much of the instructions asked by defendant as correctly presented the law applicable to the case were embodied in the instructions given by the court, and we are not disposed to hold -that the court erred in refusing the instructions asked by defendant.

Instruction No. 3 as given by the court seems to authorize the jury to find damages in excess of the power of deceased to earn money, and to tha-t extent may be considered in conflict with the decisions of this court which hold -that the criterion of recovery is for the destruction of the power of the decedent -to earn money, and that no other element of damages can be considered except in case of gross or willful negligence (the writer of this opinion, however, dissented from the decisions on that question); but the decisions are now the law. Hence it follows that .the instruction in question was erroneous, and doubtless prejudicial to the defendant.

It was the duty of the defendant when approaching the station in the town of Sparta to use reasonable or ordinary care to discover any obstruction upon .the track, and it was also the duty of the defendant to give timely and proper notice of its approach to the station. But it also had a right to presume that any person standing or walking upon the track of the railroad would in due time remove himself out of danger of injury, and that, until defendant’s agents or servants discovered that such person-even a trespasser — was oblivious of the danger, it was not required to stop or check the speed of the train. It was also the duty of the decedent, if he had notice of the approach of the train to the station, to exercise reasonable care to ascertain the proximity of -the train to the station, and to be careful not to expose himself to any danger by walking upon or near the track upon which the train was approaching; and it was his duty, if he heard the train whistle, indicating its approach to the station, to be on the lookout for the same, and to keep himself out of danger. We are not sure that the instructions given sufficiently include or embrace this principle.

It seems to us that the instructions of .the court failed to correctly present the law as indicated herein, and for that reason the judgment is reversed, and cause remanded for a new trial upon principles consistent with this opinion.'