Chesapeake & Ohio Ry. Co. v. Marcum

135 S.W. 1198, 142 Ky. 789, 1911 Ky. LEXIS 316

• Court: Court of Appeals of Kentucky
• Decided: March 16, 1911
• Status: Published

Opinion

..'■Opinion op the Court by

Judge Nunn

Affirming.

This is the second appeal of this' case. The opinion <m the first appeal relates’ all .the .facts of the case and may be found in 136 Ky., 245; 124 S. W., 293. On a rel urn -of- the case to the lower court it was again tried and a verdict rendered for $2,000 in favor of appellee. The testimony showed on the first trial as well as on .the last, that the negligence for which appellee sought recovery was committed by his superior, Thomias Blaldnship. The first judgment was reversed because the lower court permitted a recovery for the ordinary negligence of the superior when the recovery should have been confined to .(•lie gross negligence. On the last trial, in instruction No. 2,.the count said the following to the jury:

. “And further believe from the evidence that said injuries were caused by the gross negligence and carelessness of defendant’s foreman, Thomas Blaldnship, by failing and- refusing to stop said hand-car and allow plaintiff to leave it at- a time when he, the said foreman, could have stopped it and when he knew or by the exercise of slight care could have have known that by reason of the storm it was dangerous not to do so, they will find for the plaintiff and unless they do so believe they will find for defendant.”

, ■ Thus we see .that the court told the jury positively that appellee could not recover unless the negligence of Thomas Blakinship, the foreman, was gross. This is made plain throughout all the instructions and the jury could not have misunderstood it. This is the only objection made to the judgment upon this ¡appeal, therefore, it is affirmed.