
    Case 108 — ACTION FOR DAMAGES FOR INJURY CAUSING DEATH
    June 14.
    Louisville & Nashville R. R. Co. v. Adams’ Administrator.
    APPEAL FROM LINCOLN CIRCUIT COURT.
    1. Negligence — Duty of Engineer to Anticipate Danger of Brakeman. — When an engineer is backing his train for the purpose of having a coupling made, it is his duty to look out for danger in his rear and watch the movement of the brakemen and use reasonable care and diligence in ascertaining any danger to which the latter may be subjected, and if he fails to do so and the brakeman loses his life by reason of such failure, the company is liable.
    
      2. Contributory Negligence — Instruction.—The court in such an action properly instructed the jury that although they might believe from the evidence that the engineer wias grossly negligent in backing his train at an unusual rate of speed, yet they should find .for the defendant if they believed from the evidence that the deceased was .ordinarily negligent either (1) in undertaking to make .a .coupling, .or (2) in standing with'one foot between the rails and that .such position was a want of ordinary prudence on his part, or (3) in attempting to make the coupling at a time when the cars were in motion, knowing the same to be more than ordinarily dangerous, or (4) that for the position of making the coupling the deceased entered between the cars from the left side of isaid ¡brain when such entry wias a want of ordinary prudence.
    H. W. BRUCE FOR THE APPELLANT.
    I. The instruction as to contributory negligence was fatally erroneous. The instruction tells the jury that “if the engineer knew, or might by the exercise of reasonable diligence have known the position and conduct of Adams, they can not find for defendant on the ground of Adams’ negligent position.” The instruction is erroneous by reason of inserting the words in italics. Johnson’s Admr. v. L. & N. R. R. Co., 91 Ky., 653.
    2. The verdict is flagrantly against the evidence.
    3. The proof .shows contributory neglect.
    4. In view of the rules governing the action of brakemen in making couplings, it was error to admit testimony showing that it was safer to couple by hand.
    EDWARD W. HINES in a supplemental brief for appellant.
    1. The petition fails to allege that the negligent servants were superior in authority to plaintiff’s intestate; and unless there was such superiority, ithere can be no recovery. Volz v. C. & 0. Ry. Co., 95 Ky., 188.
    2. There is no .direct allegation imputing negligence to the servants of the defendant. The .allegation that “the injury and death was caused by the gross .negligence of the defendant, its agents .and servants in charge of the train” is a mere inferential allegation of negligence.
    3. The instruction defining the duty of defendant to the plaintiff is erroneous in that i.t does not require the jury in order to find for the plaintiff to believe that the speed at which the train was backing caused the injury. It was erroneous also in submitting the question of punitive damages. McHenry Coal Co. v. Snedden, 17 Ky. Law Rep., 1261. If any instruction authorizing punitive damages was proper, the instruction given was misleading.
    
      4. The measure of compensatory damages was also erroneous. L. & N. R. R. Co. v. Bakins’ Admr., 45 S. W. R., 529.
    5. The second instruction was erroneous in directing the jury to find for plaintiff notwithstanding his .contributory negligence if they believed that the engineer knew, or might by the exercise of reasonable diligence have known the position and conduct of Adams, as therein set forth, in time to have avoided running the cars against him by the use of .such available means as were at hand at the time. There is no evidence tending to show that after Adams was placed in peril, any amount of care could have prevented injury.
    W. G. WELCH for the appellee.
    1. The verdict is sustained by the evidence. This court will not invade the peculiar province of the jury unless the verdict be clearly and flagrantly against the .evidence. Varble v. Bigley, 14 Bush, 698; L. & N. R. R. Co. v. Mitchell, 87 Ky.,' 327.
    2. The plaintiff’s denial of the defense of contributory neglect was a valid denial of all but the act itself. Cincinnati, &c., R. Co. v. Barker, 94 Ky., 77; Ency. of Pld. & Pr., vol. 1, p. 798, note 3. The reply specifically denies that the plaintiff was guilty of any act of negligence contributing to -the injury complained of. This made a complete tand perfect issue on that subject. C. & 0. Ry. Co. v. Smith, 39 S. W. R., 833; L. & N. R. R. Co. v. Wolfe,. 80 Ky., 84. Were it otherwise, however, the defect is cured by the verdict. Woodcock v. Farrell, 1 Met., 443; Stevens on PL, pp. 147-8-9; Drake’s Admr. v. Sem'onin, 82 Ky., 291.
    3. It was incompetent to permit plaintiff to prove the danger of coupling by hand: as compared with that by using a coupling-stick. L. & N. R. R. Co. v. Foley, 94 Ky., 229.
    4. The .court did not err in instructing the jury. The language of the instruction italicized by counsel for appellant .and complained of is not objectionable. Shearman & Redfield on Negligence (4th ed.), voL 1, secs. S9 and 100.
   CHIEF JUSTICE HAZELRIGG

delivered, the opinión of the court.

Whilst coupling cars in the service of the appellant, the appellee’s intestate received injuries from which he died. This action, brought by his administrator to secure damages for his death, resulted in a verdict and judgment for $5,000; hence this appeal.

The evidence is abundant that the moving cars which were backed upon the standing, or dead one, for the purpose of effecting the coupling were moved back at an unusual speed and came upon the standing car “with a terrible crash,” as put by one witness, and with the “loudest noise” ever heard in such work, as said by another, who had lived in the vicinity for nearly twenty years, and had seen such work night and day. Others, who lived from seventy-five to two hundred and seventy-five yards away, -were “alarmed” at the noise of the collision.

The chief defense was the plea of contributory negligence on the part of the decedent. .The issues o|j this behalf, as well as on the whole case, were very lucidly submitted to the jury by the learned trial judge. The real points of the defense are thus submitted: “If you believe from the evidence in the case that (1) the deceased undertook to make a coupling between the moving and the dead cars without using a coupling stick, and that such omission of this stick was a want of ordinary care or prudence for his own safety; or (2) that in attempting to make the coupling the deceased stood with one foot between the rails, and that such position was a want of ordinary prudence for his own ’safety; or (3) that in attempting to make the coupling the decreased did so at a point of time when the cars were in motion, and that he knew or had reasonable grounds to know that this was more than ordinarily dangerous; or (4) that for the purpose of making the coupling the deceased entered between the cars from the left side of the train, when the entry from the left side was a want of ordinary prudence for his own safety, — then, on either of such states of fact, the deceased was guilty of ordinary neglect of means and opportunities for his own safety, ño, theréfore, you are further instructed that, although you may believe from the evidence that defendant’s engineer was grossly negligent in the respects mentioned in the first instruction (that is, in moving the cars back at the unusual rate of speed), yet if you further believe from the evidence that the deceased was ordinarily negligent of his own safety in any or all of the respects set forth in this instruction, and that the injury to him would not have happened if he had not been, then you will find for the defendant, unless you further believe that the engineer knew, or might by the exercise of reasonable diligence have known, of the position and conduct of Adams, as herein set forth, in time, to have avoided running the cars against him by the use of such available means as were at hand at the time, in which latter state of -case you can not find for the defendant on the grounds of Adams’ negligent position or conduct.”

It seems to us that these instructions eoArered fully the grounds of the defense, and stated the case very favorably for the company.

It is contended that the engineer was not bound to exercise reasonable diligence to know the dangerous position of the brakernan; but have actual knowledge of it, and fail to use reasonable effort to arrest the danger, before a recovery can be had on this branch of the case. But, while this is the rule generally as to trespassers and wrongdoers, it does not apply to a case wffien the engineer is backing his train for the purpose of having a coupling- made. In that state of case, it is his duty to look out for the danger in his rear, and watch the movements of the brakernan, and use all reasonable care and diligence in ascertaining any danger in which the brakernan may be placed. L. & N. Railroad Co. v. Earl’s Adm’x, 94 Ky., 875, [22 S. W., 607],

We perceive no error in the case, and the judgment is therefore affirmed.  