Citation Numbers: 183 Ky. 615
Judges: Settle
Filed Date: 3/18/1919
Status: Precedential
Modified Date: 7/24/2022
'Opinion op the Court by
Affirming.
On the’trial of this action, whereby the appellant, Sidney Crook, was seeking’ the recovery of damages for injuries to his right hand resulting in the loss of the third finger and the bruising of another, caused, as alleged, by the negligence of the appellee, Cincinnati, New Orleans & Texas Pacific Railway Company, at the conclusion of the appellant’s evidence the circuit court,
“In attempting to take bold of the lever of the brake to stop said tricycle, his right hand was caught in said cogwheels, thereby crushing, breaking and severing the third finger of the plaintiff’s right hand; and that defendant negligently failed to have said cogwheels covered or guarded and they were dangerous to persons operating said tricycle when uncovered or unguarded.” Í • •
The petition then proceeds to allege that he was inexperienced in operating tricycles; that the danger from the cogwheels was at the time unknown to him but was known to the defendant; and that he was not advised by the section boss of the danger to be apprehended from the cogwheels in operating the machine.
It appears from the bill of evidence that appellant was in appellee’s employ as a section hand or track repairer and had served it hi that capacity for Jwenty years. On the day his injuries were received he and two other servants of appellee, all under the supervision of the section boss, were at their customary work of track repairing about three miles north of Mason, using at the time a motor truck, the engine of which, for some reason, failed to longer propel it, thereby rendering it necessary to push the car by hand to a nearby crossing to get it off the track out of the way of expected trains; and to protect the employes pushing the motor car from coming trains appellant was directed by the section boss to get upon the tricycle, keep in the rear of’the motor car and -watch the electric signal block north of him for a signal of the coming of a train. He got upon the tricycle as directed and proceeded to follow after the men pushing the motor truck, keeping such attention as he could' upon the signal block behind him for a signal of the coming of a train, in doing which he discovered that he was about to run the tricycle into the
The only evidence introduced as to the manner in which the accident occurred was furnished by the testimony of the appellant. There were two physicians introduced as witnesses in his behalf, but the only evidence elicited from them was as to the nature and extent of his injuries. While the testimony of appellant was to the effect that he had never previously operated the tricycle in question, it and others like' it had, as he admitted, been almost daily used by the section boss and bis gang during the many years of appellant’s connection with them. He did not testify that he had not during his long service with appellee operated another or other tricycles like the one by which he was injured; nor was he able to point out wherein the mechanism of the latter differed from that of other tricycles with which he was familiar or that had been used by the section gangs with which he had been connected while in appellee’s employ. In brief, we think it fairly apparent from the appellant’s own testimony that the tricycle was constructed in the customary manner; that it was not out of repair in any of its parts; that there was no exposure of its cogwheels that is not common to all such machines, or that can be remedied by a cover or guard, and that the danger from contact of the band of the operator with the cogwheels, was and is so open and obvious as to be readily seen and understood by a person of ordinary intelligence while engaged in operating the tricycle.
Notwithstanding his duty to keep a lookout for the coming of a train appellant was not expected,’ nor was there in the instructions given him by the section boss, any command that required him in watching the signal block for a signal of the coming of a train, to neglect the taking of such precautions for his own safety as would be expected of an ordinarily prudent person under like or similar circumstances. Obviously, he was not required or expected to reach for and attempt to manipulate the lever for stopping the tricycle while looking at the signal block, and if he did so with the knowledge he must have bad of the open and visible prox
But if the proof of appellant’s own negligence had been less convincing, the action of the court in directing a verdict for the appellee was authorized on the ground that appellant failed to prove that his injuries resulted from the negligence of appellee alleged in the petition. As previously stated, the act of negligence charged was the failure of appellee to have the cogwheel covered or guarded. In giving his testimony appellant admitted that in attempting to grab the lever or brake to stop the car he missed it, “and something caught that finger.” When asked what caught his finger he dnswered: “Well, I don’t know whether it really was the cogs or whether it was the wooden piece about that long that works right along at the side of the car; it works backwards and forwards.” When asked later in his examination to again tell the jury about his injuries he answered: “Well, I threw that hand down to catch the brake, why, there was something caught that finger; of course I didn’t see what it was, but I thought at the time it was the cog-wheels. But after I again looked at that car, that little wooden piece could catch a fellow’s fingers and cut them off, and I clon„’t know whether it was the wooden piece or the brake; I don’t know which it was, but, anyhow, there was something that caught my finger and cut it off.” His testimony throughout manifests his ignorance of the manner of receiving- his injuries, further than that his finger was caught - either by the cogwheels or a piece of wood, which in some way, unexplained, formed a part of the tricycle and was put in motion by its movements. The petition makes no mention of this piece of • wood or complaint that its presence added in any way to the danger of operating the tricycle; nor is it therein alleged that the failure of appellee to cover or guard the wooden piece constituted negligence. Yet according to the evidence, the injuries of appellant may as reasonably be attributed to this appliance as to the cog-wheels. Where in a suit for personal injuries,' the plaintiff specifies the act or acts of which the alleged negligence conr
So in this case, after alleging in the petition the failure of appellee to provide a cover or guard for the cogwheels of the tricycle as the act of negligence causing his injuries, appellant could not shift the ground of recovery by proving that his injuries were also caused by the negligence of appellee in permitting the use of the piece of wood on the tricycle or in failing to cover it. We do not overlook the fact that appellant, at the conclusion of the evidence, offered to file an amended petition containing such averments as he thought would entitle him to rely upon the ground last mentioned for a recovery, but the trial court properly refused to1 allow the amendment to be filed, as its allegations did’ not conform to the proof, for there was no proof authorizing a recovery upon any such ground. The presence of the piece of wood as a part of the machine, as well as whatever danger was to be apprehended from the contact of appellant’s, hand with it, was just as open and obvious to him in using the machine as were the presence of the cog wheels and danger from like contact with them. Indeed, viewed with an understanding of the evidence, the new matter contained in the amended petition amounted to little more than a confession on the 2)art of appellant that he was without actual knowledge as to the manner of receiving his injuries. It is a well known rule of law that where, on the plaintiff’s own evidence, it is as probable that the injury sued for was not due to defendant’s negligence as that it was due to such negligence, plaintiff cannot recover. L. & N. R. R. Co. v. Guest, Admr., 32 R. 670, 106 S. W. 817; L. H. & St. L. Ry. Co. v. Golly’s Admx., 28 R. 989, 90 S. W. 977.
As the record discloses no cause for disturbing the verdict directed by the trial court, the judgment is affirmed.