
    Case 12-PETITION OBDINAEY
    April 22.
    Casey's Adm'r v. Lou. & Nash. R. R. Co.
    APPEAL PROM SHELBY CIRCUIT COURT.
    1. Master and Servant — Bespondeat Superior. — The rule that where two servants are in the same field of labor, and in the same grade of employment, the one not superior or subordinate to the other, neither can recover of his master for an injury caused by the neglect of his co-laborer, applies as well to an action under the statute for willful neglect as to a common law action for neglect.
    2. Same. — Where laborers at work on a railroad, in transporting dirt on small truck cars a short distance, alternately acted as brakemen, they were in the same grade of employment, and no recovery can be had for an injury to one by the neglect of another, although the negligent laborer was at the time acting as brakeman, and the injured laborer was not, the one being as much a brakeman as the other.
    3 Special Verdicts — New Trial. — Where there is no evidence to support a special verdict, which, if supported by the evidence, would entitle the plaintiff to judgment, the court, instead of rendering judgment for the defendant, should grant a new trial.
    
      PRYOR J. .POREE por appellant.
    1. While the deceased is reasonably presumed to have taken upon himself all the risks and hazards necessarily incident to his employment, it can not be presumed that he risked or hazarded the gross or willful negligence of his co-employes. (L. & N. R. R. Co. v. Robinson, 4 Bush, 507; L. & N. R. R. Co. v. Pilbrun’s Adm’x, 6 Bush, 574.)
    2. Section 3 of chapter 57; General Statutes, gives a right of action to the representatives of an employe of a corporation whose life has been lost by the willful neglect of the corporation, its agents or servants, as well as to the representatives of any other person, no distinction being made between the life of an employe and that of a stranger. (L. & N. R. R. Co. v. Brooks’ Adm’r, 7 Ky. Law Rep., 115; Lou., Cin. & Lex. R. R. Co. v. Case’s Adm’r, 9 Bush, 732.)
    3. Willful neglect is the intentional failure to perform a known or manifest duty, in which the public has an interest, or which is important to the person injured, either in preventing or avoiding the injury to him. (L. & N. R. R. Co. v. McCoy, 5 Ky. Law Rep., 405.)
    4. The motion for a new trial was not a waiver or abandonment of the motion for judgment on the verdict, the latter motion having been finally disposed of before the motion for a new trial was made.
    G. N. ROBINSON op counsel on same side.
    BULLOCK and BECKHAM por appellee.
    1. Where one of several common laborers in the employment of a corporation loses his life by the willful neglect of a fellow-laborer, the master is not liable under section 3 of chapter 57, General Statutes. (L. & N. R. R. Co. v. Collins, 2 Duv., 114.)
    2. Section 3 of chapter 57, General Statutes, applies only to companies or corporations, and not to natural persons, and is, therefore, in conflict with the 14th amendment to the Constitution of the United States. (County of San Mateo v. Southern Pacific R. R. Co.; Opinions of Justices Pield and Sandford.)
    3. Notwithstanding the finding of the jury that the plaintiff’s intestate lost his life by the willful neglect of the defendant’s servants, the lower court had the right to render judgment for the defendant, there being no evidence to support the verdict.
    4. By making a motion for a new trial, upon the ground that the verdict was not supported by the evidence, the plaintiff abandoned his motion for a judgment on the verdict. (Owensboro Water Co. v. City of Owensboro, 6 Ky. Law Reporter.)
   JUDGE PRYOR

delivered the opinion op the court.

In this case there was a motion by each party, plaintiff and defendant, for a judgment on the special findings. The motion in behalf of the defendant should have been to set aside the verdict, because of the want of evidence to support it.

The findings by the jury, if true, entitled the appellant to a judgment, and if not true, entitled the appellee to a new trial.

The condition of the rajlroad track at the time of the accident had nothing to do with this case. The appellant was suing under the statute for damages, on account of the death of his intestate, caused by the willful neglect of the railroad company, its agents and employes. The jury, by a special finding, said that the death was caused by the willful neglect of two of the brakemen, and assessed the damages at two thousand five hundred dollars. Upon such a finding the plaintiff was entitled to a judgment, and if there was no evidence to support the finding, instead of rendering a judgment for the defendant, the court should have set aside the verdict, and granted a new trial. We see no distinction in a case of this character between a special and a general verdict. If there had been no special verdict, but a general verdict, and that verdict not sustained by the evidence, the motion for a new trial should have prevailed, and not a judgment for the defendant. So if the special verdict entitles the plaintiff to a judgment, the court should set it aside, .and award a new trial. It is only where the special findings entitle the one party or the other to a judgment that the court is authorized to render it.

There was no motion for a non-suit, or if there was, it did not prevail; but the case went to the jury, and that jury returned a special verdict that, if true, entitled the appellant to a recovery, and if not sustained by the evidence, a new trial should have been granted; and no doubt the court, in entertaining the motion, based a judgment for the defendant on the ground that there was no evidence to support it.

The right of recovery in this case- depends upon the relation the deceased sustained towards the parties who are said by the jury to have caused, by their willful neglect, the death of the intestate. A number of laborers were at work on the railroad, including the intestate, in transporting dirt on small truck cars a short distance, and were under the control of Collins and Aiken as section bosses. These-small cars had, for brakes, rails, that were inserted in a hole cut in the floor of the car, and when pressed against the wheel retarded the progress of the car. After loading the cars each one started off, the intestate on the first car, and several others after him on a down grade. The hindmost car seems to have-run faster than the others, and running against the car next to it caused it to strike with force the front car, and the sudden jar knocked the intestate off his car, causing his death. The jury said the death was caused by the willful neglect of the brakemen on the hind cars. They were called on to apply brakes when the velocity with which the hind car approached was discovered. This they neglected to do, and hence the injury. The only question in this case is, whether the intestate and these brakemen were common laborers in the same line of service, and the one required to risk the contingencies produced by the want of skill on the part of the other. If the appellant’s intestate is to be treated as a mere laborer on the road, and the two parties as brakemen, in the exercise of such duties as pertain to that office on railroads, then the recovery for the death of the intestate may be properly based on the ground of willful neglect. The proof, however, in this case conduces to show that brakemen on these truck cars are not selected by reason of their skill or care out of the number constituting these common laborers. Any of them may get on the car acting as brakeman, it being a duty pertaining to all, and a right that each one can and does exercise, going first on the one car and then on the other. The jury do not find that the section bosses started these cars in too close proximity to each other, but that the loss of life was caused by the neglect of the two brakemen, and from the proof the one laborer was as much a brakeman as the other. If so, the risk is taken by these parties in the same field of labor and in the same grade of employment as to all injuries that may happen by the neglect of their co-laborers.

In the Louisville, Cincinnati & Lex. Railroad Co. v. Cavens' Adm'r, &c., 9 Bush, 565, it is said: “And it is equally as well established that when a number of persons contract to perform service for another, the employes not being superior or subordinate the one to the other in its performance, and one receives an injury by the neglect of another in the discharge of this ■duty,' they are regarded as substantially the agents of each other, and no recovery can be had against the employer.”

So if the discharge of this duty as brakemen on the truck cars was common to all, then we- see no reason for a recovery in this case. The statute giving a remedy for the loss of life caused by the willful neglect of another is but enlarging the common law rule, or providing a remedy unknown to the common law, but at the same time the doctrine of the text-books as to the liability of the employer for the acts of those in his employment, except as to the degrees of negligence, must prevail.

To say that if the injury was caused by one in the employ of another in the exercise of that employment the employer is liable, regardless of the relation the wrong-doer and the injured party sustained towards each other at the time, is not the meaning or the purpose of the statute.

The statute only gives a remedy for negligence causing the death of another that heretofore could not be maintained.

This is unlike the case of L. & N. Railroad v. Collins, 2 Duvall, 114. There the engineer of the train caused the injury to the common laborer, and on his skill and care the injured party had the right to rely.

As this case must be re-tried, the judgment is reversed, and cause remanded, with directions to set aside the judgment for the defendant, and award it a new trial, and for proceedings consistent with this opinion.  