Lou. & Nash. R. R. v. Mitchell

JUDGE HOLT delivered the opinion op the court. The appellee, Robert S. Mitchell, while in the employ of the appellant as a brakeman, and when engaged in the hazardous work of coupling some freight cars in the presence of, and under the direction of the conductor, was caught by the wheel of one of them, and his ankle and foot so crushed that it had to be amputated. TIis theory as to the manner of the injury is, that after making the coupling, and before he had time to get from between the cars, there was a new movement of the train under the direction of the conductor, by which he was knocked down and injured. -The company, upon the other hand, claim that there was no new movement of the train; that it backed slowly and properly to the car that was to be coupled to it; that the appellee went — 333 — between them and made the coupling, and then, instead of coming out at once, walked between the two cars for three or four steps as they continued to go backward some six or eight feet from the force of the movement that was necessary to make the coupling, and in this way was caught and injured. The company now object to the judgment of ten thousand dollars, that was rendered upon the special verdict, upon several grounds. The petition, after setting forth the manner and extent of the injury, avers that “the said action of said defendant’s conductor in charge of said train, and the action of defendant in regard to said operating of said train, was negligent and careless, and the defendant was guilty of negligence, and the said injury to the plaintiff occurred by reason of the'negligence and want of reasonable care on the part of defendant, and without any fault of the plaintiff.” The degree of the imputed negligence is not stated, at least in express language. Waiving the question whether this may not be done, and whether it is not done in this instance, by the statement of the manner of the injury, we are of the opinion that the use of the generic word “negligence” in the pleading, in an action of this character, is sufficient without averring its degree. This is not an action under the statute for a killing by “willful” neglect. If it were, it would have been necessary, inasmuch as the statute creates and defines the injury, to allege that the negligence was willful; but it is one at common law for negligence. In such • a case, the degiee, whether willful, gross or ordinary, — 334 — need not be stated. It is a matter of proof, and not of averment. It is ’said in Cliitty, that a general averment of negligence authorizes proof of gross negligence. (2 Chitty on Plead., *358, note e.) In Abbott’s Trial Evidence, page 583: “Gross negligence may be proven under a general averment of negligence.” Another writer uses this language: “The declaration must aver the negligence or default of the company ; but it need not describe the kind of negligence, or particular acts which constitute the default, or the names or positions of the servants by whose fault the injury was inflicted.” (Pierce on Railroads, page 393.) Newman in his work on Pleading .and Practice, page 415, says, in substance, that where a statute creates and defines an injury by neglect, its particular degree must be averred in the language of the statute or in equivalent words; but that in other cases the general allegation of negligence will be sufficient, as it “in general includes gross as well as ordinary negligence.” Many cases might be cited in support of these text-writers. Among them are Nolton v. Western Railroad Corporation, 15 N. Y., 444, and Turnpike Company v. Maupin, 79 Ky., 101. The last-named case was for an injury sustained by reason of a defect in a bridge of the company, and the court in its opinion says: “ The allegation of negligence is sufficient to entitle the plaintiff to recover in an action like this for any degree of culpable negligence that may be established by the evidence.” Why should not the general allegation of negli — 335 — gence authorize proof of gross negligence, where its existence is necessary to a recovery, equally with evidence of slight or ordinary neglect in a case where it is sufficient? Each are but subdivisions of it, and equally embraced by the term. There is some evidence that the injury to the appellee resulted from gross neglect; the pleading authorized its admission, and as its existence was necessary to a recovery, the question was properly submitted to the jury whether the injury was thus caused. The company contends that the interrogatories submitted to the jury were suggestive, and calculated to induce responses favorable to the apjxellee; that the court improperly refused to let them say whether the injury resulted from an accident which could not have been guarded against by the exercise of ordinary prudence upon the part of the train men; that it failed to inform them that the burden rested upon the appellee not only to show the company’s neglect, but his own freedom from any negligence; that some of the material findings are unsupported by the evidence, and that the damages awarded are excessive, resxxlting in part at least from the improper admission of evidence that the appellee had a family. The jury in answer to the interrogatories found that the appellee, when coupling the cars, was acting under the orders of the conductor; that when the coxxpling was made there was a momentary check of the train, but that it was in motion when the appellee was hurt, and that the conductor, by signal, caxised the train to move on before the appellee had reasonable time to get from between the cars • that the gross negligence — 336 — of the conductor in controlling the train caused the injury, and that he failed to use such caution as an ordinarily prudent person would have used under like circumstances; that the exercise of ordinary care by the appellee would not have avoided the injury, and that ten thousand dollars in damages would reasonably compensate him for the mental and bodily suffering, and the impairment of his capacity to labor and enjoy life arising from it. It is insisted for the company that the findings, that there was a new movement of the train; that the injury resulted from gross negligence upon the part of the conductor, and that the exercise of ordinary care by the appellee would not have averted it, are altogether unsustained by the evidence. Whether this is so, and whether the verdict is so excessive as to warrant the intervention of an appellate tribunal, are the main questions to be considered. The special findings of a jury, like a general verdict, can not be disturbed upon the ground that they are against the weight of the evidence, unless they are flagrantly so. The appellee testified, in substance, that by the direction of the conductor, and in his presence, he went between the cars to make the coupling; that after doing so, and before he had time to get out, he was injured by a new movement of the train. If this be true, the conductor was certainly chargeable with gross negligence. He was immediately present; he was controlling the train; he knew the appellee had gone between the cars by his orders to make the coupling, and that a new movement of the train would — 337 — imperil liis life. Under such circumstances it was his duty to see that it did not take place. Certainly, the absence of slight care in the management of so dangerous an agency as a railroad train is gross negligence. The conductor would not, for fear of injury to his own person,' have permitted a new movement of the train, if he had occupied the appellee’s position. To permit it under the circumstances was an absence of all care. It is true several other witnesses testify that there was no new movement of the train, but that merely the motion of the train necessary to make the coupling carried it backward a few feet. In fact, we are inclined to think that some of the findings are against the weight of the evidence, as it appears to us in the record; but they are the conclusions of twelve men who heard and saw the witnesses; and we can not say that they are flagrantly so, especially in view of the fact that they have been approved by the trial judge, before whom the witnesses also testified. The evidence fails to show that the negligence, which must be imputed to the company, was accompanied by any act of willfulness. The jury, however, found it to be gross; and this authorizes the finding of exemplary damages. (Railroad Company v. McCoy, 81 Ky., 403.) The jury were, however, restricted by the court to those which are compensatory only; and of this the company can not, of course, complain. The amount allowed seems, large. It is so. The fact, however, that it appears high to us does not authorize a reversal. We are not acting as a jury, and it is only when — 338 — it is glaringly excessive, and appears at first blush to have resulted from passion or prejudice, that we can interfere. The power should be sparingly exercised, and only in extreme cases. This is the policy of the law, and reasonably and necessarily so. It is difficult, indeed impossible, to measure with mathematical certainty the extent of some of the elements of compensatory damages. The law has confided the duty to the opinion of a jury as the best means of arriving at their extent even approximately, and every verdict should be regarded prima facie as the result of the exercise of an honest judgment upon their part. Any other rule would soon burden this court with numberless appeals upon this ground. The evidence shows that the appellee has suffered beyond estimate. For weeks his life hung in the balance. He is a cripple for life ; doomed to hobble about during the balance of his days, disabled from earning a living, at least at his accustomed employment, if not altogether, and in large measure deprived of the enjoyment of life. In estimating the damages for all this, different minds may well arive at different results; and in view of the well established rule upon this subject the verdict of the jury cannot be disturbed upon the ground that it is excessive. The interrogatories objected to are in form as follows : “4. Did or not the conductor (Sterling), whilst the plaintiff was coupling the cars, and before he had reasonable time to complete the same and come from between the cars, cause, by order or signal, the train to start in motion, and thereby catch the plaintiff between the cars, and cause the injury to the latter?” — 339 — “Answer. We of the jury say that the conductor did, by signal, cause the train to move on before the jdaintiff had reasonable time to come from between the cars.” “ 5. Was or not the injury to the plaintiff caused by the negligence or want of care on the part of the conductor (Sterling) in controlling or directing the movements of the train at the time ? ” “Answer. We of the jury say, yes it was.” “ 5J. If they answer question five in the affirmative, then they will say whether such neglect on the part of the conductor was gross neglect or ordinary negligence?” “Answer. We of the jury say it was gross negligence.” “5f. Did or not the conductor (Sterling), at the time of plaintiff’s injury, fail to use that kind of care and caution which an ordinarily prudent and skillful person engaged in like business would have observed under similar circumstances ? ” “Answer. We of the jury say, he did fail.” “6. Could or not the plaintiff, by the use of ordinary care and prudence on his part at the time, have avoided said injury?” “Answer. We of the jury say, he could not.” “7. If the jury answer question No. 4 in the negative, question 5 in the affirmative, question 6 in the negative, and say in answer to question No. dj that said conductor was guilty of gross negligence, then they will consider, and say in answer to this question, what sum in damages, within that élaimed, will reasonably compensate plaintiff for the injuries sustained by him, — 340 — because of said negligence; the bodily and mental suffering (if any) resulting directly from said injuries, and the impairment of capacity (if any) to labor and enjoy life, resulting also from said injury. If, however, said questions 4, 5 and 6 are not answered as herein set forth, then this, the seventh question, need not be answered. “Answer. We the jury find for the plaintiff in the sum of ten thousand dollars.” It is urged that they pointed out to the jury how to find a verdict that would sustain a judgment for the appellee. It may be equally said that they informed the jury how to find, so as to authorize one for the oompany. As to the last interrogatory, it may be said that it would be difficult, if not impossible, to frame a hypothetical question so that a jury of ordinary intelligence would not know how to find, to authorize a judgment for the one party or the other. Certainly it would be impossible to submit interrogatories of such a form that the attorneys could not point out to the jury how they desired them to answer them to authorize a judgment for their client. If such a thing were possible, the jury would be unable to act intelligently. We must presume that they hunt for the right and not the wrong; and in our opinion the interrogatories are not open to the objection that they are improperly leading and suggestive. The court, by its instructions, properly defined what would constitute gross and ordinary negligence upon the part of the conductor, and what would be ordinary - care upon the part of the appellee; and the interrogatories must be read in the light of these instructions. — 341 — Tlie jury were not only required to find specially whether the appellee had been guilty of any negligence, but were informed that the burden of proof rested upon him, and that he must make out his case by the weight of the testimony. It was not a question of accident under the pleadings, but whether the company had been guilty of gross neglect, or the appellee of such negligence, that but for it the injury would not have happened. This was the issue, and it was proper to shape the interrogatories with a view to its determination, and not of some question not presented. In the case of the L., C. & L. Railroad v. Mahoney, 7 Bush, 238, evidence that the injured party had a family was held to be competent. That was an action, however, under the statute, for a killing by willful neglect. In actions for injuries for neglect not based upon such a statute, and where compensatory damages only are allowable, the authorities are to some extent conflicting as to the competency of such evidence. In the case of Winters v. Railroad Company, 39 Mo., 468, it was decided that it was competent to prove that the injured party had a family, not as a fact in itself authorizing damages, but as showing his condition and situation in life by way of estimating the damages done to him. Upon the other hand, this was denied in the case of the Railroad Company v. Powers, 74 Ill., 341, upon the ground that it would tend to unduly enhance the damages and beyond compensation ; that the only question is, how much has the plaintiff been damaged ; and if such evidence be admissible, then it would be equally proper to show that the wife was blind, or the daughter an invalid. — 342 — It was, however, held by the Supreme Court of the United States in the case of the Pennsylvania Company v. Roy, 102 U. S., 451, that evidence as to the poverty of the injured party, or whether he had a family, was inadmissible where he was entitled to compensatory damages only. This left the question open, so far as that court is concerned, in a case where an injury results from gross neglect, unaccompanied by willfulness or acts of aggravation. In the case now in hand the petition avers that the appellee has a family. It is specially pleaded. It is held in some cases, as in Laing v. Colder, 8 Penn. St., 479, that matters not naturally attendant upon the act, but proper by way of special damage, as that the injured party is the head of a family, may be proven, if specially pleaded. Mr. Rorer, in his work or Railroads, volume 2, p. 1099, appears by the citation of authority to support this view. It is not, however, necessary in this case to decide whether such evidence is competent in a case where an injury results from gross neglect, which authorizes exemplary damages, but which is unaccompanied by any act of willfulness or oppression, or whether it is admissible in support of such matter when specially pleaded, because, in this case, the jury were, by the seventh interrogatory, expressly restricted in estimating the damages to such sum as would “reasonably compensate plaintiff for the injuries sustained by him because of such negligence; the bodily and mental suffering (if any) restating directly from such injuries ; and the impairment of capacity (if ' any) to labor and enjoy life restating also from said injury” — 343 — This question enumerated the elements for the calculation of the damages, thereby withdrawing from the consideration of the jury the evidence as to the family as effectually as if it had been done by express instruction. (Railroad Company v. Shipley, 31 Md., 368.) It was not a general verdict; but the finding as to damage was upon a special question, that pointed out to the jury what they should consider in fixing it. We cannot presume they did not follow it; and if an erroneous step or instruction in a case be corrected by a subsequent instruction or otherwise, no ground for reversal exists. Judgment affirmed.