Louisville & Nashville Railroad v. Coniff's Adm'r

•JUDGE PBYOE

'DELIVERED THE OPINION OE THE COURT.

The action in this case seems to have been instituted for the purpose of recovering damages, not only for the killing of the deceased, as authorized by the statute, but to recover for the pain and suffering of the-intestate during the time intervening between the infliction of the injury and the death.

In the case of Jordan’s Adm’r v. Cincinnati, &c., R. Co., 89 Ky., 40, and in numerous other cases, it lias been held that no recovery can be had for the loss of life where the person killed leaves no widow, child or children, and for that reason it is no doubt sought to recover for the mental and bodily suffering of the intestate prior to his death.

In the case of Cincinnati, &c., R. Co. v. Adams’ Adm’r, 11 Ky. Law Rep., 833, decided at the last term, it was held, in effect, that where one in the employment of a railroad company, while in the same grade of service, loses his life by the neglect of a co-employe in the same hand-car at the time the injury was sustained, that no cause of action exists for the loss of life, or any other injury caused by the one employe to the other. This and nothing more was decided in that case, the party causing the injury and the one killed being in the performance of the-same service.

Section 1 of chapter 57, General Statutes, provides, that “if the life of any person not in the employment of a railroad company shall be lost in this Commonwealth by reason of the negligence or carelessness of the proprietor or proprietors of any railroad, or by the unfitness or negligence or carelessness of their servants or agents, the personal representative of the person whose life is lost may institute suit, and recover damages in the same manner that the person himself might have done for any injury where death did not ensue.”

It necessarily follows that the cause of action did not survive to the personal representative in this case unless the injury was the result of gross or willful neglect. Section one applies to those not in the employ of the company, and to recover where one dies from an injury caused by neglect on the part of the company while in its employ, the personal representative must allege and establish gross or willful neglect, and there can be no recovery for mere ordinary neglect. The intestate could have only recovered for gross or willful neglect if he had survived the injury, and his personal representative can do no more. The question in this case is, has the personal representative made out a case of gross or willful neglect?

The appellee’s intestate was injured, as is alleged, by the negligence of the defendant in so operating its cars as to cause a lever, used by switchmen to shift the cars from one track to the other, to strike the intestate in the abdomen, causing his death. The intestate was in the employ of the company in the switch-yard of the defendant at the time of the injury, and it was his duty to protect rear cars in backing, or in going from the one track to the other. How he happened to be at the place where he received the injury does not appear, as the uncontradicted testimony shows that the rails of the one track did not need changing at the time in order to enable the cars to go upon another track. We shall assume that his action was in the discharge of his duty, and that the facts show when near the lever the train, moving back at the rate of three or four miles an hour, by spreading the rails, cansed the lever to strike the unfortunate man. It seems that the machinery with which the lever is connected was unlocked, or had been tampered with, and it may be that the intestate was attempting to properly adjust it when the accident happened. The engineer had gone to perform a call of nature at the time, but the train was being moved by one in the employ of the company on the train entirely competent to manage it. The conductor was .attending the loading of some cars. There was nothing unusual in the movements of the train, or any reason to suspect danger, still the young man happened to be near enough for the lever to strike him, and we have failed to see any proof showing either gross or willful neglect, or even ordinary neglect, on the part of the company causing the loss of-this young man’s life.

His brother gives, in detail, all that occurred at the time, making a plain, honest and truthful statement of what transpired, and the other employes make a like statement, and from the testimony we can not say that these employes are to blame in any manner for the death of their fellow-wórkman. The lever or its boxing may have been unlocked. The conductor may have been, as he was, engaged in loading scrap iron, and the engineer at the water-closet, still the train was moving slowly by those competent to manage it. The deceased saw it moving, made his way to the rear of the train, and when near the lever the injury, as stated, occurred. No one had any reason to believe that the machinery for shifting the cars was out of order, or that the intestate was in a position where he might be injured. If they saw his danger, and failed to use proper precaution to prevent injury,, the company would be responsible. The intestate, when entering the employ of the company, assumed to run the ordinary risks pertaining to the business as well as to submit to the ordinary and usual mode of conducting trains by those in charge. The fact that the conductor was loading iron, and the engineer' off the train, did not amount to willful, gross or ordinary neglect if those on the train, the fireman and brakeman, were moving it in the usual manner. They were not guilty of neglect, and the intestate, entering the service of the company, assumes such risks as-may arise from convenience or from necessity necessary to the moving of the train, and certainly when those left in charge have not been guilty of any neglect..

The instruction given, by which the jury was told that the administrator was entitled to compensation, for the loss of the intestate’s life, should have been refused. Nor should the jury have been told that the company was liable if those moving the train knew, or by ordinary attention could have known, the danger, because not authorized by the facts proven. There is no evidence showing that the train was improperly managed, or that those in charge of it could have, by either ordinary or extraordinary care, avoided the injury. We can not, of course, anticipate the testimony that will be offered on another trial, but this judgment must be reversed, and is remanded for a new trial in conformity with this opinion.