
    Case 04 — ACTION FOR NEGLIGENCE CAUSING DEATH
    Dec. 8.
    Linck’s Administrator v. Louisville & Nashville R. R. Co.
    APPEAL JTROM TODD CIRCUIT COURT.
    1. Negligence — Fellow-Servants—Conductor and Engineer. — An ■engineer is a, fellow-servant of the conductor even when the latter is temporarily performing the duties of an absent brakeman, and for the negligence of the engineer resulting in the conductor’s death -the latter’s administrator can net recover.
    2. Same — New Constitution.- — The fellow-servant rule was not abrogated by section 241 of the Constitution.
    3. Same — Defective Track.- — it is action-able negligence on the part of a railroad company for its agents and servants in charge of the track to leave obstructions on the track over which the plaintiff’s decedent stumbled while in discharge of his duties, and so was killed.
    STEGAR, WASHINGTON and JACKSON, JOHN FEXLAND & SON and HUNTER WOOD & SON eob appellant.
    1. The new Constitution and ithe statute enacted pursuant to same make the -master -liable in ail -cases for the negligence of a servant causing the de-ath of his fellow-servant.
    2. If they do not the master is liable-, under the decisions of this court, if, though ithe -servants are co-equals and engaged on the same train, the negligence alleged consists in the improper doing of a particular act over which the co-ordinate could not ■possibly exercise -any control.
    3. If the appellant is mistaken in both of these propositions, it is certain that when it becomes the duty of a -co-equal to abdicate, so to speak, and undertake the duties of an inferior,- — in doing this he is -entitled to the same protection as the inferior.
    -Citations: Thompson on Negligence, yol. 2, p. 917, ch. 202; Wood’s M-aster & Servant, ch. 16, sec. 416, p. 795; Cooley on Torts (2d ed.), p. 637, s. p. 541; Constitution, sec. 241; Debates of Con. Conv., p. 5750, vol. 4; F-arwell v. B. & W. R. R. Co., 38 Am. Dec., 324; Munsey v. S. C. R. R. Co., 36 Am. Dec., 268; Redfield’s Am. R. W. Cases, 40-3; Redfield on Railways, sec. 170, s. p. 386-7; 5 Am. Law Reg., 272; L. & N. R. R. Co. v. Collins, 2 Duv., 114; L. & N. R. R. Co. v. Brooks’ Admrx., 83 Ky., 137; Canal Co. v. Murphy, 9 Bush, 522; L. C. & L. R. R. v. Caven’s Admr., 9 Bush, 559; Quaid v. Cornwall & Bro., 13 Bush, 601; Claxton’s Admrx. v. L. & B. S. R. R., 13 Bush, 636; N. N. R. R. v. Eifort, 15 Ky. Law Rep., 600; L. & N. R. R. Co. v. Coniff’s Admr., 16 Ky. Law Rep., 296; Volta v. C. & O. Ry. Co., 95 Ky., 188; Ross v. Chicago Ry. Co., 112 U. S., 377; Northern Pac. R. R. Co. v. Hambly, 154 U. S., 349; E. Tenn. Tel. Co. v. Simms’ Admr., 99 Ky., 404; L. & N. R. R. Co. v. Collins, 2 Duv., 114; Debates of last Con. Conv., pp. 5750-1-2; Murray v. S. C. R. R. Co., 1 McMull, 385; I. C. R. R. Co. v. Hilliard, 99 Ky., 689.
    
      W. M. PARHAM on the same side.
    1. It is the duty of the master and he is bound, at his peril, to use due care .and diligence towards .his servants for -their safety, and upon his failure to do so, he is liable for the result.
    2. It is an imposed duty that a railroad company is bound to exercise extraordinary care and prudence in the operation and. movements of its trains, and if .a stranger sustains an injury by reason of ordinary negligence of its agents, servants and employes, then the .company is liable for the consequent injury.
    3. The second amended petition shows that in managing the engine .and in driving the cars back the engineer did so with great ■and unnecessary force and violence and with gross and wilful negligence and carelessness, and that the intestate was at the ■time .acting for and in the place of a brakeman who was temporarily and necessarily .absent, and by the rules and regulations- of the defendant it was the duty of intestate to make the coupling and to enter upon the- track at the time and place that he did, and but for the gross .and wilful negligence of said engineer the intestate would not have been injured and killed as stated in the petition.
    PERKINS & TRIMBLE in a beiee and supplemental brief for the APPELLEE.
    Counsel discussed the points urged in the briefs of St-egar, Washington & Jackson, John Feland & Son and Hunter Wood & Son, -and W. M. Parham; and upon the said points made the following citations: L. & N. R. R. Co. v. Collins, 2 Duv., 119; Ky. Con., sec. 241; Ky. Stats., sec. 6; Greer v. L. & N. R. R. Co., 14 Ky. Law Rep., 876; Volta v. C. & O. Ry. Co., 15 Ky. Law Rep., 727; Martin, Admr., v. L. & N. R. R. Co., IS Ky. Law Rep., 150; L. & N. R. R. Co. v. Rains, 15 Ky. Law Rep., 423; I. C. R. R. Co. v. Hilliard, 18 Ky. Law Rep., 506; L. & N. R. R. Co. v. Mattingly, 18 Ky. Law Rep., 823; C. N. O. & T. P. Ry. Co. v. Palmer, 17 Ky. Law Rep., 998; East K. Ry. Co. v. Powell, 17 Ky. Law Rep., 1051; L. & N. R. R. Co. v. Sanders, Admr., 19 Ky. Law Rep., 1941; Ky. Senate Journal, 1898, p. 363; L. & N. R. R. Co. v. Moore, 7 Ky. Law Rep., 646; Chicago, &c., R. R. Co. v. Ross, 112 U. S. Sup. Ct., 377; L. & N. R. R. Co. v. Coppage, 7 Ky. Law Rep., 527; Potter v. L. & N. R. R. Co., 20 Ky. Law Rep., 1842; 'Whitton, v. South C. & Ga. R. R. Co., 14 Am. & Eng. R. R. Cases, 776.
    EDWARD W. HINES on the same side.
    In the' recent case of Edmonson v. Ky. Gent. R. R. Co., 20 Ky. Law Rep., 1296, this court held that conductor and engineer were oo-equal fellow servants, and that the doctrine of fellow servants applies as well to actions for death as to actions for personal injuries not resulting in death. This case would seem to be conclusive of the case at bar.
    EDWARD W. HINES- fob appellee in a petition fob a beheabing.
    The court holds that while the petition -as amended does not state a cause of action, yet as the petition without the amendment stated a cause of action i-t was error to sustain a demurrer -thereto and that the judgment should for that reason he reversed. The -rule th-at where a plaintiff amends his petition after a demurrer is sustained thereto, die can not on appeal assign the ruling on demurrer as -error is universally recognized by appellate courts. Elliott on Appellate Procedure, sec. 683; 1 Ency, of PI. & Pr., 624; Ball v. C. & O. Ry. Co. (Va.), 32 L. R. A., 792; State v. Jackson, 142 Ind., 25.9; s. c. 41 N. E., 534; Dorisett v. Greencastle (Ind.), 40 N. E., 131; Lane v. Burlington, &c., R. Co-., 52 Iowa, 18; Herman v. Glann (Mo.), 31 S. W., 589; Sylvester v. Gratz, 18 Gol., 44; s. c. 31 P-ac. Rep., 387; Bell v. W-andby (Wash.), 31 Pac. Rep., 18. When a petition is amended the amendment and original are one pleading. The court then acts not merely on the amendment, but upon the petition as amended, and the original petition can mot thereafter be considered separately for any purpose. The original petition -does not allege that rubbish left on the track was the cause of the death of plaintiff’s intestate, and it is manifest that that w-as the ground upon which the demurrer to that pleading was sustained.
   JUDGE WHITE

deliveeed the opinion of the coubt.

This is an action for damages for causing the death of Edward B. Linck, brought in the Todd Circuit' Court. The original petition was in two paragraphs, and alleged that decedent was killed by being run over by cars backed by the engine; that at the time decedent was the conductor of that train, but, on account of the temporary absence of a brakeman was acting for and in the place of the brakeman in making the coupling. The alleged negligence was (1) that of the engineer, in backing the engine with great and unnecessary violence, so that the coupling link broke, and decedent was knocked down and run over by the backing train and killed; (2) that the servants of appellee haying charge of the tracks at the station, Guthrie, had left on the track, where decedent was compelled to make the coupling, a lot of rubbish and old iron, and it being in the night-time, and decedent being unaware ofthe presence of the- obstruction, he -stumbled and fell over this iron, and was run over and killed. Before answer, an amendment was filed, alleging a defect in the coupler, and that by reason thereof the injury occurred; that is, while decedent was trying to use the defective coupler he could not avoid the negligence of the engineer in backing the engine. To the petition as amended an answer was filed, denying these alleged acts of negligence, and pleading contributory negligence. A reply denied contributory negligence. Subsequently appellee, by permission, withdrew its answer, and filed a demurrer to the petition and amendment. This demurrer was sustained, and appellant filed a second amended petition. A second -demurrer was sustained to the petition as amended, and, appellant failing to plead further, the action was dismissed, and hence this appeal.

The petition, as amended the last time, alleges that decedent, Linck, was a conductor in charge of a freight train on appellee’s road, and at the time the injury that resulted in death was inflicted, decedent was acting as a brakeman in making a coupling of some cars in the train; the brakeman whose duty it was to make the coupling being temporarily and necessarily absent. The negligence complained of is alleged to have been, alternatively, in one or the other of several things. It is alleged that the negligence pausing the injury was that of the engineer in charge, by moving the cars backward “with great and unnecessary force and violence, and with gross and willful negligence and carelessness,” and that but for this negligence of the engineer the injury .and death would not have happened.

It is next alleged that the agents and servants of appellee, not in charge of the train or operating it, negligently and carelessly left upon the track, where decedent must pass in making the coupling, a lot of old iron and other material, over which decedent stumbled and fell in attempting to avoid the negligence of the engineer as above; that the fact of the old iron and other obstructions being there was unknown to decedent; that by reason of this negligence the injury occurred from which death resulted. It is also alleged that the injury resulted by reason of a fall over the old iron and other obstructions above stated, carelessly and negligently left on the track by the track repairers, and of whose presence decedent did not know, nor by the exercise of reasonable care could have discovered.

It was also alleged that the coupler on the car was heavy and cumbersome by reason of a defect, and did not lit the car to be coupled thereto, and that to make the coupling it was necessary to lift up the defective coupler, and in so doing decedent was injured; that the defective condition of the coupler on a car not in his train was discovered only after decedent went in to make the coupling, and then too late to avoid the negligence of the engineer in backing too fast and hard, and that but for this defective coupler the injury would not have resulted to decedent, even though the engineer was negligent also. It was averred that either the fact© as alleged in the first, second, third or fourth paragraphs are true, but that the appellant did not know which was true. The second demurrer, being to the petition as finally amended, goes to the paragraphs separately, and, if either paragraph alleged in the alternative be insufficient, the demurrer must be sustained. Construing the pleading most strongly against the pleader, he must sustain his alternative pleas in the weakest point.

Beginning with the case of Railroad Co. v. Collins, 2 Duv., 118; [87 Am. Dec., 486], this court, by a long and unbroken line of decisions, including Railway Co. v. Palmer, 98 Ky., 382; [33 S. W., 199], and Edmonson v. Kentucky Central Railway Co., 20 Ky. Law Rep., 1296, [49 S. W., 200, 448], has repeatedly held that where two servants of the same master are equal, and neither superior to the other, no recovery can be had, as against the master, by one servant for the negligence the other. It has also been held that where two servants are in the' same field of labor, but are not of the same rank, the master is not liable for an injury to the subordinate by the ordinary negligence of the superior, but is liable only in case of gross negligence of the superior.

The Edmonson case was where a conductor was run over and killed while attempting to make a coupling himself. The court held there could be no. recovery for the negligence of the engineer, by reason of the rule in the Collins Case, 2 Duv., 118; [87 Am. Dec., 486]. The death occurred, in the Edmonson Case, in October, 1890. It is contended that if the rule laid down in the Edmonson Case, and other cases to the same effect, were the law as to the cases there decided, it has no application to this; that by the adoption of section 241 of our present Constitution the rule of law as to fellow servants was changed.

Section 241 of the Constitution reads: “Whenever the death of a person shall result from an injury inflicted by negligence or wrongful act, then, in every such case, damages may be recovered for such death from the corporation and persons so causing same.” There follows a provision as to who may prosecute an action to -recover. It is insisted 'that by the use of the term, “then, in every such case, damages may be recovered for such death, from the corporation and persons so causing same,” it is meant to provide that a recovery may be had for a death resulting from the negligence of a fellow servant, regardless of grade or degree of negligence.

In considering this section, it may be well to consider the condition of the law as laid down by this court at the time of the adoption of the Constitution.

Under section 1 of chapter 57 of the General Statutes, it had been held, as in the Collins Case, 2 Duv., 118; [87 Am. Dec., 486], that damages were not recoverable by an employe of a railroad for an injury inflicted by the negligence of a fellow servant. And a fellow servant was held to be a servant of the same master, in the same field of labor, and of an equal grade with the one injured. It was also held that no recovery could be had for the ordinary negligence of a superior servant of the same master engaged in the same field of labor.

Under section 3 of chapter 57 of the General Statutes, it had been held that no recovery could be had fob ..death unless the deceased left a widow or child.

The debates of the Constitutional Convention (pages 5749-5752) show that it was intended to place ' in the organic law, and beyond the control of the Legislature, that an .action for damages resulting in death survived, and might be recovered by the personal representative, regardless of whether widow or children survived. It was intended to provide, also, that the right of action could be maintained against both the servant whó was negligent and the company he represented. The framers of the Constitution intended to so fix the law that the Legislature could not release either the servant who was negligent or the company. It is true that, as the statute then stood, the changes made by the Constitution amounted, as we see it, to but two things: It provided for a survival of the action, regardless of the fact whether decedent left a widow or child, and also provided for a recovery by a servant against his master for the ordinary negligence of a superior servant; wheréas, in the first there was no survival of the action without a widow or child, and in the second the negligence of the superior servant must have been gross.

But, to be plain that this is the law as intended, the first Legislature that assembled after the adoption of the Constitution, and which contained many members of the convention, section 6 of the Kentucky Statutes was enacted. It provides: “Whenever the death of a person shall result from an injury inflicted by negligence or wrongful act, then in every such case damages may be recovered for such death from the person or persons, company or companies, corporation or corporations, their agents or servants causing the same, and when the act is willful or the negligence gross, punitive damages may be recovered and the action to recover spch damages shall be prosecuted by the personal representative of the deceased.”

This statute clearly provides that, where death is caused by negligence or ■ wrongful act, the cause of action survives; where the negligence is ordinary, compensatory damages may be recovered; where the negligence is gross, or the act willful, punitive damages may be recovered; that such action may be maintained against the immediate person guilty of the wrongful act or of the negligence, as well as against any person, company or corporation represented by such person inflicting the injury.

It is insisted in the case at bar that, under the Constitution and the above statute, appellant has shown a right to recover. If this action was against the engineer whose alleged negligence caused the injury, counsel would be correct; but as to appellee company such is not the law, for the reason that, as between decedent and the engineer, the engineer did not represent the company.

If it be conceded that the engineer.was the equal in service with decedent, then as to decedent the engineer could not represent the common principal. The fact that decedent at the time was performing the duties of brakeman did not change his character or position as conductor. Although the brakeman, if injured , under the same circumstances, might have recovered of appellee, yet decedent can not, because as to him there was no agent of the company guilty, or charged to be guilty, of negligence.

The petition, as finally amended, therefore, in one of the alternative pleas, failed to state a cause of action, and was insufficient. For the same reason the petition as' first amended, as to the first paragraph alleging the negligence of the engineer, was insufficient; and the court, in sustaining demurrer thereto, in so far as it pleaded the negligence of the engineer, did not err. However, in the original petition, the second paragraph alleging negligence of servants of appellee, who had charge of the track at that point, in leaving obstructions on the track, and by reason of such obstructions decedent, not being apprised that they were there, stumbled and fell, and was run over and killed, stated a cause of action. The court, therefore, erred in sustaining a demurrer thereto.

For this error the judgment is reversed, and causo remanded, with directions to overrule the demurrer to the second paragraph of the original petition, and for further proceedings consistent herewith. Upon a return of the case, appellant will be permitted, if he so desires, to withdraw his last amended petition.

The whole court sat in this case.

JUDGE GUFFY dissents from part of this opinion.  