Louisville & Nashville R. R. v. Crutcher

Opinion op the Court ey Judge Hobson Beyersing.' Justus Crutcher was a switchman in the service of the Louisville & Nashville Bailroad Company in its yard at Paris, Ky. The crew to which he belonged used an engine known as “No. 603.” It was a road engine and had been converted into what is known as a “yard engine.” When used as a road engine it had three driving wheels on each side, and a truck composed of four small wheels supporting the front of the engine. To change it from a road engine to a yard engine, the pilot was taken off, a step being put in its place, and the truck of four small wheels was removed. These small wheels served to steady the engine when running, and, to compensate for taking them out, the position of the boiler was changed to balance the machinery upon the three pairs of driving wheels so as to steady it for use in the yards. — 387 — In January, 1908, the crew were going with the engine -up in the yard to move a car, Crutcher being in the cab of the engine. As to what happened the proof is conflicting. The proof for him is to the effect: That the attempt to steady the engine had been unsuccessful. That it rocked as it went to such an extent that it had acquired the name “Ocean Wave,” and this was known to all of them. That the engineer, as they were going up after this car, being in a hurry to get out of the way of a train that was about due, was running about 15 or 20 miles an hour. This caused the engine to oscillate violently, and by reason of this oscillation Crutcher was thrown from the cab. He caught the handhold as he was thrown out, which caused him to swing around with great violence against the step, which struck him in the side, causing violent hemorrhages from the lungs, and by reason of his injuries his capacity to earn money was practically destroyed. The proof for the defendant is to the effect that the engine was running only at its ordinary rate of speed at 4 or 5 miles an hour, that Crutcher started to get down off the engine for the purpose of throwing the switch while the engine was in motion and, that as he stepped his foot turned on a lump of coal, and he lost his balance and fell for this reason. After he had been laid op for 12 days with his injuries, and when they were nof regarded as serious, as they afterwards appeared, the defendant paid him $28.80 and he executed to it a release of all claims on account of his injuries. Afterwards he brought this suit to recover damages, and the defendant pleaded the written .release in bar of a recovery. It also traversed the allegations of the petition and pleaded contributory negligence. A reply was filed — 388 — by him, and the issue was made up. The case was submitted to a jury, who found a verdict for him in the sum of $6,000, and the defendant appeals. The court did not err in refusing to instruct the jury peremptorily to find for the defendant. If this engine wobbled as much as the proof for the plaintiff tends to show when run over sis miles an hour, there was evidence of gro'ss negligence on the part of the engineer in running it 15 or 20 miles an hour; and, if by reason of this dangerous speed Crutcher was thrown from the engine, the question of gross negligence should be submitted to the jury. Crutcher was making $2.10 a day. He had been unable to work for twelve days, and he was paid $28.80. This he testified was paid him for his lost time, and that the question of a settlement for his injuries was not mentioned. He signed the paper in ignorance of its being a release, and believing it to be simply a receipt for his wages. If his evidence was true, the settlement was obtained by fraud or mistake, and this question was for the jury. The court, at the conclusion of all the evidence, gave the jury these instructions: “Instruction No. 1. The court instructs the jury that if they believe from the evidence that the plaintiff was injured on January 11, 1908, by the gross negligence of the defendant’s engineer in the operation of engine No. 603, in the yards at Paris, by which negligence, he, the plaintiff, was thrown from the said engine, injuring him, then they will find for the plaintiff such sum as will compensate him. for his pain and mental anguish, if any, which he has heretofore suffered, and which from the evidence it is reasonably certain that he will hereafter suffer, — 389 — if any, for the impairment of his power to earn money, if any, not exceeding in all $10,000, and, unless they so believe, they will find for the defendant. “Instruction No. 2. The court instructs the jury that if they believe from the evidence that the paper relied on by the defendant as a release was executed both by the plaintiff and the defendant, each understanding and agreeing that the said paper was a release for all claims which the plaintiff had or might have against the defendant on account of the injury received by the plaintiff, then the jury are instructed to. find for the defendant; but, if they believe that the paper produced in evidence was signed and executed both by plaintiff and defendant with the mutual understanding that it was for the time lost by plaintiff for 12 days on account of his having received the injury complained of, then the jury shall not regard the paper as a release of all claims by the plaintiff against the defendant, but it shall be wholly disregarded by them. “Instruction No. 3. The court instructs the jury that, when the plaintiff entered the services of the defendant, he assumed all the risks which are ordinarily incident to his employment, and if the jury believe that the injury received by the plaintiff was received in the ordinary employment of the plaintiff by the defendant, and in the ordinary operation of engine No. 603, then they ought to find for the defendant. ‘ ‘ Instruction No. 4. Even though the jury may believe that the defendant, by its agents and servants then in charge of the engine mentioned herein, was — 390 — cai'eless and negligent, yet, if they further believe that the plaintiff himself was' careless and negligent, and that such carelessness and negligence on his part, if any, contributed to the injury received by him, but for which contributory negligence on his part, if there was any, the injury would not have been received, then the jury ought to find for the defendant. ” The defendant, among others,' asked this instruction: “The court instructs the jury that if they shall believe from the evidence that the plaintiff', Crutch-er, while riding on defendant’s' engine leaped or stepped from said engine while it was in motion, and thereby received the injury complained of, the jury should find for the defendant.” The written' release barred the plaintiff’s action unless the evidence .offered by the plaintiff was sufficient to relieve him from it. It made out prima facie a defense for the defendant. The instructions do not so present the matter. The defendant was not required to offer any evidence except the writing to make out its defense. The burden was on the plaintiff -to avoid the writing, and the instructions of the court should be so framed as to show this. Another objection to the instructions is that they do not present to the jury in a sufficiently concrete form the plaintiff’s case or the defendant’s defense. L. & N. R. R. Co. v. King (Ky.), 115 S. W. 196. In lieu of instructions No. 1 and No. 2, the court should have told the jury that if they believed from the evidence that, by the gross negligence of the engineer in the operation of the engine at a high and dangerous rate of speed, the plaintiff was thrown from the engine and injured, and if they further be — 391 — lieve from the evidence that the paper read in evidence as a release was executed upon the mutual understanding of both the plaintiff and the defendant that it was for the time lost by the plaintiff for 12 days on account of his having been injured, and that the plaintiff executed the release by mistake, or by fraud of the defendant, then they should find for the plaintiff such sum as would compensate him for the pain of body and mind, if any, which he has heretofore suffered, or which it is reasonably certain he will thereafter suffer, if any, and of the impairment of'his power to earn money, if any, resulting directly and proximately from his said injury, not exceeding in all $10,000, and unless they so believe they will find for the defendant. In lieu of instruction No. 3, the court should have told the jury that when the plaintiff entered the service of the defendant he assumed all the risks which were ordinarily incident to the business conducted with ordinary care, including the danger from the operation of engine No. 603, unless the engineer was guilty of gross negligence in running at a high and dangerous rate of speed as set out in No. 1. In lieu of instruction No. 4, the court should have told the jury that if they believe from the evidence that the plaintiff, Crutcher, while riding on the engine, negligently undertook to leap or step from it when it was running at a rapid and dangerous rate of speed, or if he stepped upon a lump of coal, and his foot slipped, and he thus lost his balance, and this, and not the speed of the engine, was the proximate cause of his fall, or if while riding on the engine he failed to exercise such care for his own safety as a person of ordinary prudence, situated as he — 392 — was would usually exercise, and but for this would not have been injured, then, in any of these events, they should find for the defendant. We see no other error in the record. Judgment reversed, and cause remanded for a new trial.