Louisville & Nashville R. v. May

8 Ky. Op. 116, 1874 Ky. LEXIS 382

• Court: Court of Appeals of Kentucky
• Decided: October 3, 1874
• Status: Published

Opinion

Opinion by

Judge Lindsay:

The court did not err in refusing instruction No. 8, asked by appellant. The appellee was bound to use ordinary care, and the jury were so instructed, and in determining whether he did use such care, the jury were told by instruction No. 14 that they should consider all the facts and circumstances proven in the case. This authorized them to take into consideration the condition of the draw-head; to have called special attention to the drawhead, as was intended to be done by the refused instruction, would have been to give its condition undue importance. Instruction No. 12, given on motion of appellee, is not subject to the criticism in which counsel indulge. The adjectives “gross” and “willful” apply to and qualify “carelessness” as well as “negligence,” and this fact must have been palpable to the jury.

Hines & Porter, for appellant. I. A. Mitchell, for appellee.

We cannot reverse this judgment upon the facts. Appellant proves more than mere inadvertance upon the part of the fireman, who was operating the engine at the time of the accident. If the speed of the locomotive was suddenly increased, when the two cars to be coupled were in a few inches of each other, it was an act of gross negligence, if not of positive recklessness.

The fact of the increase of speed is disputed by two or more witnesses ; it was for the jury to determine the question.

They accepted and acted on the version given by appellee, and as this is the second finding in his favor we do not feel authorized to interfere.

Judgment affirmed.