Southern Ry. v. Clifford

Opinion op the court by JUDGE WHITE Reversing. JUDGE GUF-FY DISSENTING. Appellee, Clifford, was in the employ of appellant as a brakeman on a freight train, and was injured while making a coupling of cars, and brought this action to re-" cover damages for the injury. The cause of1 appellee’s injury is stated to be the negligence of the fireman on the • engine in failing to receive signals given to slow and to ■stop; also the negligence of the engineer to obey the signals- given, and in “backing up” at an excessive and dangerous rate of speed. There was denial of negligence in either particular alleged, and a plea that the. injury was caused by the negligence and carelessness of appellee :himself. On the trial appellee introduced testimony which [729] tended to show that he gave the proper signals when he went between the cars to make the coupling, and that the fireman on the engine was in plain view and looking his way, and could easily see them, but that, when appellee went between the cars, the moving ones attached to the engine came back at a high speed, the witness estimated at eight miles per hour, and the appellee’s hand' was injured. All this was flatly contradicted by evidence-for the appellant, it being stated by appellant’s witnesses that t'he engine “backed up” at about two milés per hour very slow. At the conclusion of the evidence for appellee a peremptory instruction was asked by appellant, and- refused by the court. A trial resulted in a verdict and judgment for $2,000, and, after appellant’s motion for-new trial had been overruled, it prosecutes this appeal. We are of opinion that the evidence on behalf of appellee, uneontr-adieted, was sufficient to have sustained a verdict for appellee, on the theory of the negligence of the engineer, or those in the charge of the train superior to appellee, and therefore there was no error in refusing the peremptory instructions asked. The court, on its own motion, gave instructions as follows: “11) The court instructs the jury that if they shall believe from the evidence that the plaintiff gave the signal to hold up the engine to a very slow rate of speed, and also gave the signal to stop the train, upon the occasion mentioned in the petition, and the fireman or engineer of the train failed to observe or obey the said signals, and that the failure to observe or obey was, under all the facts and circumstances in evidence, gross negligence, and by reason thereof the plaintiff received the injury of which he complains, and that the plaintiff did not, by negli [730] gence upon his part, contribute to cause his injury, but for which he would not have been injured, the law is for the plaintiff, and they should so find. “(2) But if the plaintiff did not give the said signals, or if he did give them, and the engineer or. fireman did not fail to observe or obey them, or if they did so fail, yet if the failure was not, under all the facts and circumstances admitted in evidence, gtoss negligence, the law is for the defendant, and they should so find. “'(31 Or if the plaintiff, by negligence upon his part, contributed to cause his injury, and he would not have been injured but for his contributory negligence, if any there was, the law is for the defendant.” Instruction No. 4 gives the measure of damages, and Nos. 5 and 6 define “gross” and “ordinary” negligence., Instruction Nos. 3, 4, 5 and 6 seem to fairly state the law, but Nos. 1 and 2 are seriously assailed. By instructions 1 and 2 a recovery is permitted for the gross negligence of the fireman, and it is seriously contended that this is error, for the reason that it permits a recovery for the negligence of a fellow servant. In the case of Volz v. Railway Co., 95 Ky., 188 (14 R., 727) (24 S. W., 119), after a review of all the cases in this State, thus the rule is .stated by Hazelrigg, J.: “In all cases the principle upon which the employer is held liable is said to be that of agency — what he does through another he does himself. As to strangers, therefore, railroad companies are held liable for the negligence of their employes', whatever may be the grade of the negligence. When, however, a workman enters upon this admittedly dangerous service’, he must be held to. as sume the ordinary risk incident to the service. This is true of him whether he be pile driver, brakeman or conductor. He is presumed to know the [731] perils of the service, and he knows there will be want of ordinary care at times, by reason of which he may be injured. . . . But, recurring directly to the question at issue, what risks do fellow servants, working as coequals in the same grade of service, take with respect to-their negligent acts affecting each other? Amidst all the confusion and diversity of' opinion prevailing in the different courts of the States on the general subject of fellow servants, we believe there is but one answer given to this question. The differences obtaining are with respect' to the rules determining who are fellow servants. On all hands it is said that such servants, when of the same, grade and engaged in a common field of labor, are1 not agents of the company with respect to each other.” This doctrine has been repeatedly approved by this court (Railway Co. v. Sanders Adm’r. (Ky.) 44 S. W., 644; (19 Ky. L. R., 1941) Edmonson v. Railway Co. (Ky.), 49 S. W., 200, 448; (20 Ky. L. R., 1296) Linck’s Adm’r v. Railway Co. (Ky.), 54 S. W., 184; (21 Ky. L. R., 1097) Railway Co. v. Coleman (Ky.), 59 S. W., 13), and is well settled. Instructions 1 and 2 are therefore error, in that they permit a recovery for the negligence of the fireman, if it can be said he was a fellow servant of appellee. The pleadings and proof show that at the time of the injury the fireman was performing his ordinary duties-on the engine. There is no pretense that the fireman was performing any of the duties of the engineer, as was-the case in the Eifert case, 15 Ky. Law Rep., 575, the Moore case, 83 Ky., 675, or the Foard case (Ky.), 47 S. W., 342; (20 Ky. L. R., 646) but here his duty was to receive-the signals from appellee, and repeat them to the engineer, who controlled the movements of the engine. In this, his ordinary duties as fireman, we are of opinion he was the fellow servant of appellee, engaged in the same field of labor, [732] and for the negligence of this fireman towards appellee, a brakeman, appellant is not liable, whether the negligence be ordinary or gross. The engineer and conductor are superior to the fireman and brakeman, and- represent the company in the -movements of the train. For the negligence of either the engineer or conductor the fireman or brakeman could recover of the company, as in such cases there is an agent to represent the principal. For the errors indicated in instructions numbered 1 and 2, the judgment must be reversed, and cause remanded for a new trial, and for further proceedings consistent herewith. Whole court sitting. Judge Guffy dissenting.