Louisville & N. R. R. v. Logsdon

Opinion op the court by JUDGE HOBS-ON — Reversing. Appellee, Logsdon, who is twentv-two years of age, was helping his father load a car with lumber at Munfordville, Ky., in April, 1901, on a side track of appellant’s road at that point. While they were in the car, loading it, a freight train pulled in on the main line about opposite to them. The engine then went up to the switch with a flat car loaded with rock, and sent it down on the side [751] crack on which the car stood in which they were working. A brakeman was on the rock car, and undertook to stop it before it reached the car in which they were working; but, either from the force with which it was sent in, or its weight, or the fault of the brake or of the brakeman, tire car was not stopped, and collided with the other car with great force. The brakeman jumped off just before the collision. Appellee’s father also jumped off their car, and called to appellee to jump, but he did not understand, and, before he could get out, the collision occurred, jamming the lumber against his ankle, breaking one of the bones, and painfully injuring it. The freight car had been, set there by the company for them to load, and the trainmen saw it there before they jerked the rock car in. By “jerking a car in” is meant giving it a jerk with the engine,, and letting it run without the engine being attached to> it. The jury found for appellee, and fixed his damages at $8,000. Instruction 1 given by the court is in these words: “If you shall believe from the evidence that the plaintiff came upon the premises of the defendant at the request of his father, and at his request engaged in loading a car with lumber that had been engaged by his father from the defendant for the shipment of his lumber over the road of the defendant, and that while plaintiff was so there and so engaged the defendant, its agents or employes, in control and management of its 'engine and cars, did negligently push, shove, or throw one of its said cars against the one which had been let to his father, and in which plaintiff was located in loading said car, if he was so located, and thereby catch and injure him in said lumber and car, you should find for the plaintiff the damages which he sustained thereby, taking into your consideration the time he has lost [752] or may hereafter lose, if any; the pain and suffering he has endured or may hereafter endue, if any; the disability to labor, move about, and enjoy life which he has suffered or may hereafter suffer, if any; directly resulting to him from said injuries, and the expense he has incurred or may hereafter necessarily incur, if any, in the treatment of his said injuries, not to exceed in all the amount sued for herein, which is $20,000.” This instruction did not correctly define the measure of damages. In L. C. & L. Railroad v. Case’s Admr., 72 Ky., 736, this court said: “The term ‘'compensation,’ when applied to damages, has a fixed legal signification much more restricted than its common or general acceptation. In actions for personal injuries where death does not ensue, it is confined to the expense of cure, the value of time lost, a fair compensation for the physical and mental suffering caused by the injury, and for any permanent reduction of the power to earn money.” This was followed in L. & N. Railroad v. Fox, 74 Ky., 509; Muldraugh’s Hill, etc., Turnpike Co. v. Maupin, 79 Ky., 101, (1 R., 404) Kentucky Central Railroad v. Ackley, 87 Ky., 278 (10 R., 170), 8 S. W., 691, 12 Am. St. Rep., 480; Standard Oil Co. v. Tierney, 92 Ky., 367 (13 R., 626), 17 S. W., 1025, 14 L. R. A., 677, 36 Am. St. Rep., 595; and many subsequent cases. The authorities elsewhere are uniform to the same effect. 2 Shearman & Redfield on Negligence, 758. The case of L. & N. Railroad v. Mitchell, 87 Ky., 827 (10 R., 211), 8 S. W., 706, does not conflict with this rule, as the question was not considered there by the court, or, so far as appears, made by counsel. The case went off on other grounds. The court here should have told the jury that, if they found for the plaintiff, the measure of damages was the reasonable expenses of his core, including any expense that it was reasonably cer [753] tain lie would thereafter necessarily incur; the fair value of the time lost by him, or which it was reasonably certain he would thereafter lose; and a fair compensation for the physical and mental suffering endured by him, or which, it was reasonably certain he would endure; as well as for any permanent reduction of his power to earn money by reason of his injuries. The court defined the word “negligence” as meaning the failure to use ordinary care, and with this definition we see no objection to the use of the word “negligently” in this instruction. The question of contributory negligence was aptly submitted to the jury by another instruction. The definition of “ordinary care” should have been “such care as a man of ordinary prudence might reasonably be expected to exercise under like circumstances.” The question of gross negligence was properly left to the jury under the evidence, in view of the violence of the collision and the fact that the car was jerked in by the crew with the knowledge that the other car in which the men were working was standing on the side track, and. so near the switch. Rules 117a and 117b should not have been read to the jury, as they do not illustrate anything in the case. Rule 203 was properly allowed to be read. Judgment reversed, and cause remanded for a new trial.