JUDGE HAZELBIGG
delivered the opinion of the court.
The first paragraph of the appellee’s petition sought-damages of the appellant company, by reason of its. gross and willful neglect in crushing her intestate husband between two of its cars, and causing him great-pain, anguish, loss of time, &c. The second sought damages for the loss of his life, caused by the willful [371]*371neglect of the appellant. Being required to elect, she proceeded on the cause of action set up in the first paragraph, and obtained a verdict for four thousand dollars. The court regarded this as excessive, and required her to take judgment for two thousand five hundred dollars, otherwise, as announced, a new trial would be granted. Accordingly judgment for the latter sum was entered. Both parties complain, and it is evident that if the company were entitled to a new. trial, it should have been granted without the imposition of any terms. If not, the appellee should have had her judgment in pursuance of the jury finding. In any event, the judgment for two thousand five hundred dollars is erroneous, and must be reversed. (See Brown v. Morris, 3 Bush, 82.) The question then is, shall the appellée have judgment in conformity with the verdict of the jury, or shall the appellant have a new trial?
The solution of the question depends on whether or not there were errors committed on the trial of the cause to the prejudice of'the company. If yea, then a new trial must be ordered; if nay, judgment for four thousand dollars must be entered.
From the testimony it appears that Earl was a brakeman in the service of the company. When the train reached Munfordville moving north, the engineer turned over the engine to the fireman. The conductor was also off the train. It was a freight train, and some switching had to be done. Earl got off the cars at Logston’s store, some eighty yards from the switch; the engine moved north with some box cars attached, towards and over the switch. There [372]*372a box car was “kicked in” on the siding. Some four or five' minutes are saved by this process of “kicking in,” and the conductor proves that they .were in a hurry. After this the engine backed to where Earl stood, who coupled it to the “dead” cars, when, on Earl’s signal, it again started north “pretty fast.” Earl, as was the usual custom, caught up with rear car and was riding on the ladder on the side, intending to get off at the switch where other switching was to be done. But the “kicked in” car had not been rolled back far enough on the side track to allow a man’s body to pass between it and the moving cars. This close proximity was noticed by the fireman — -the acting engineer — on backing down a few moments before; and he testifies that he slowed up to see if his cab would pass. Earl knew nothing of this, and when he noticed it as he rode rapidly toward it, he could neither let go nor reach the top of the car. He tried the latter means of escaping the danger, but was caught and badly crushed. He lived ten days in torture and died. The plaintiff’s evidence was to the effect that Earl took no part whatever, by signals or otherwise, in placing or locating the “kicked in” car, and while he might have seen its dangerous position if his attention had been a'tracted in that direction, he was engaged in the work of coupling the live to the dead cars, and then in watching the ladder he was reaching for, and could not have observed the danger;
It is insisted jn the first place that the defendant was entitled to a peremptory instruction because of the negligence of the deceased, but we fail to perceive [373]*373wherein he was negligent. The custom of brakemen riding on the ladder from one point of work to another was clearly established. This was the well-known way of doing such work as was before Earl on this occasion. It was inexcusable negligence to leave the “kicked in” car so close to the main track that the engineer’s cab could barely pass it. This negligence caused the injury, and Earl is shown in no way to have contributed in thus locating this car. The fireman slowed up to insure the' safe passage of himself, but unfortunately failed to observe similar care for the safety of others.
Secondly, it is urged that incompetent evidence was permitted to go to the jury prejudicial to the company.
Immediately after Earl fell from the ladder the conductor testified that he (Earl) said to him that “he had tried to get to the top of the car, but it caught him before he could do so.” Brashear was then recalled for the plaintiff, and proved that he was present all the time after Earl fell, and there was no such talk, but that Earl did say that the accident was caused by the fool fireman, &c. What Earl said as to how the injury occurred was first asked for and brought out by the company; and as all the talk took place within a few seconds, it was . evidently the same conversation, and if part was detailed all should be. Moreover, the expressions were immediately upon the heels of the occurrence — within a few seconds of it — and can fairly be said to form a part of the transaction.
Thirdly, the instructions are complained of because No. 1 authorizes a recovery from the evidence, and [374]*374not from the preponderance; bnt in No. 8 the jury were told that, “before plaintiff can recover in the case, it is her duty to establish by the preponderance of the evidence that the employes of the defendant were guilty of willful or gross neglect. Ordinary neglect will not authorize a recovery.”
It is said that No. 2 ‘‘assumes loss of time, pain and suffering, and then authorizes the jury to give punitive damages ‘if the negligence was willful.’ ” It is well settled that an uncontradicted fact may properly be assumed in an instruction, and the deceased confessedly did suffer as indicated. To the ■extent that the right of recovering punitive damages was based on the establishment of willful neglect, the instruction was too favorable to the defendant. It required the greatest degree of negligence when only gross negligence was sufficient to warrant the finding of such damages. (See L. & N, R. Co. v. Mitchell, 87 Ky., 332; L. & N. R. C. v. McCoy, 81 Ky, 411.)
Instruction No. 9 required the jury to find for the •defendant, if they believed that Earl, in the performance of his duty as brakeman, failed to properly set the car on the side track, and left it so as to injure him in the further discharge of his duty, “unless they further believe that the fireman in charge of the engine could, by reasonable diligence, have discovered his danger, and by the use of reasonable diligence averted the injury.” It is urged that the fireman owed no duty to Earl if guilty of contributory negligence, unless he became aware of the danger to him, and then, by the exercise of care, could [375]*375llave .averted the injury. But in L. & N. R. Co. v. McCoy, supra, it is said: “We do not understand the law to be that the party charged with gross neg-' lect is relieved from responsibility in every case by the contributory negligence of the injured party unless he had actual notice of the injured party’s fault in time to protect him.
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JUDGE HAZELBIGG
delivered the opinion of the court.
The first paragraph of the appellee’s petition sought-damages of the appellant company, by reason of its. gross and willful neglect in crushing her intestate husband between two of its cars, and causing him great-pain, anguish, loss of time, &c. The second sought damages for the loss of his life, caused by the willful [371]*371neglect of the appellant. Being required to elect, she proceeded on the cause of action set up in the first paragraph, and obtained a verdict for four thousand dollars. The court regarded this as excessive, and required her to take judgment for two thousand five hundred dollars, otherwise, as announced, a new trial would be granted. Accordingly judgment for the latter sum was entered. Both parties complain, and it is evident that if the company were entitled to a new. trial, it should have been granted without the imposition of any terms. If not, the appellee should have had her judgment in pursuance of the jury finding. In any event, the judgment for two thousand five hundred dollars is erroneous, and must be reversed. (See Brown v. Morris, 3 Bush, 82.) The question then is, shall the appellée have judgment in conformity with the verdict of the jury, or shall the appellant have a new trial?
The solution of the question depends on whether or not there were errors committed on the trial of the cause to the prejudice of'the company. If yea, then a new trial must be ordered; if nay, judgment for four thousand dollars must be entered.
From the testimony it appears that Earl was a brakeman in the service of the company. When the train reached Munfordville moving north, the engineer turned over the engine to the fireman. The conductor was also off the train. It was a freight train, and some switching had to be done. Earl got off the cars at Logston’s store, some eighty yards from the switch; the engine moved north with some box cars attached, towards and over the switch. There [372]*372a box car was “kicked in” on the siding. Some four or five' minutes are saved by this process of “kicking in,” and the conductor proves that they .were in a hurry. After this the engine backed to where Earl stood, who coupled it to the “dead” cars, when, on Earl’s signal, it again started north “pretty fast.” Earl, as was the usual custom, caught up with rear car and was riding on the ladder on the side, intending to get off at the switch where other switching was to be done. But the “kicked in” car had not been rolled back far enough on the side track to allow a man’s body to pass between it and the moving cars. This close proximity was noticed by the fireman — -the acting engineer — on backing down a few moments before; and he testifies that he slowed up to see if his cab would pass. Earl knew nothing of this, and when he noticed it as he rode rapidly toward it, he could neither let go nor reach the top of the car. He tried the latter means of escaping the danger, but was caught and badly crushed. He lived ten days in torture and died. The plaintiff’s evidence was to the effect that Earl took no part whatever, by signals or otherwise, in placing or locating the “kicked in” car, and while he might have seen its dangerous position if his attention had been a'tracted in that direction, he was engaged in the work of coupling the live to the dead cars, and then in watching the ladder he was reaching for, and could not have observed the danger;
It is insisted jn the first place that the defendant was entitled to a peremptory instruction because of the negligence of the deceased, but we fail to perceive [373]*373wherein he was negligent. The custom of brakemen riding on the ladder from one point of work to another was clearly established. This was the well-known way of doing such work as was before Earl on this occasion. It was inexcusable negligence to leave the “kicked in” car so close to the main track that the engineer’s cab could barely pass it. This negligence caused the injury, and Earl is shown in no way to have contributed in thus locating this car. The fireman slowed up to insure the' safe passage of himself, but unfortunately failed to observe similar care for the safety of others.
Secondly, it is urged that incompetent evidence was permitted to go to the jury prejudicial to the company.
Immediately after Earl fell from the ladder the conductor testified that he (Earl) said to him that “he had tried to get to the top of the car, but it caught him before he could do so.” Brashear was then recalled for the plaintiff, and proved that he was present all the time after Earl fell, and there was no such talk, but that Earl did say that the accident was caused by the fool fireman, &c. What Earl said as to how the injury occurred was first asked for and brought out by the company; and as all the talk took place within a few seconds, it was . evidently the same conversation, and if part was detailed all should be. Moreover, the expressions were immediately upon the heels of the occurrence — within a few seconds of it — and can fairly be said to form a part of the transaction.
Thirdly, the instructions are complained of because No. 1 authorizes a recovery from the evidence, and [374]*374not from the preponderance; bnt in No. 8 the jury were told that, “before plaintiff can recover in the case, it is her duty to establish by the preponderance of the evidence that the employes of the defendant were guilty of willful or gross neglect. Ordinary neglect will not authorize a recovery.”
It is said that No. 2 ‘‘assumes loss of time, pain and suffering, and then authorizes the jury to give punitive damages ‘if the negligence was willful.’ ” It is well settled that an uncontradicted fact may properly be assumed in an instruction, and the deceased confessedly did suffer as indicated. To the ■extent that the right of recovering punitive damages was based on the establishment of willful neglect, the instruction was too favorable to the defendant. It required the greatest degree of negligence when only gross negligence was sufficient to warrant the finding of such damages. (See L. & N, R. Co. v. Mitchell, 87 Ky., 332; L. & N. R. C. v. McCoy, 81 Ky, 411.)
Instruction No. 9 required the jury to find for the •defendant, if they believed that Earl, in the performance of his duty as brakeman, failed to properly set the car on the side track, and left it so as to injure him in the further discharge of his duty, “unless they further believe that the fireman in charge of the engine could, by reasonable diligence, have discovered his danger, and by the use of reasonable diligence averted the injury.” It is urged that the fireman owed no duty to Earl if guilty of contributory negligence, unless he became aware of the danger to him, and then, by the exercise of care, could [375]*375llave .averted the injury. But in L. & N. R. Co. v. McCoy, supra, it is said: “We do not understand the law to be that the party charged with gross neg-' lect is relieved from responsibility in every case by the contributory negligence of the injured party unless he had actual notice of the injured party’s fault in time to protect him. If the appellee, by his own negligence, contributed to such an extent to produce the injury to himself, that but for his negligence it would not have happened, then he has no cause of action, unless the appellant’s agents in managing and coupling the train knew, or could have known, by ordinary attention, of the peril in which appellee’s negligence had placed him, and failed to observe reasonable care to avoid the injury which followed.”
This is substantially the instruction complained of. In No. 7 the jury had been told that if they “shall believe from the evidence that Earl negligently and carelessly undertook to ride on the side of the car at the time he was injured, and by the use of ordinary care and diligence he could have discovered his danger in time to arrest the injury, then the law is for the defendant, and the jury should so find.”
Taking the instructions together, the modification of No. 9 referred to the danger to Earl in his placing the car on the side track. That was the subject matter of the instruction, and the concluding clause referred to that danger, and not to the peril Earl may have placed himself in by riding on the ladder, but if otherwise the instruction was right. In switching and handling cars the fireman must be diligent and wide awake to dangers in the rear as well as in [376]*376front. Indeed, the only danger to life was in the rear where the men were engaged in their hazardous work. If Brashear is to be believed, the slighest attention on the fireman’s part to the frantic appeals and signals of himself and Earl to stop the train would have given Earl time to have reached the top of the car. A moment more and he would have escaped. The fireman says he saw nothing of these signals, but the other witness swears that he made them in plain view of him, and when his eyes were turned toward him.
Lastly, it is urged that the court erred in limiting the time of counsel in their argument to twenty-five minutes. It will be observed that while there are-some twelve witnesses in the case, there is comparatively little conflict of testimony. The instructions are unusually simple and direct, and we do not think the court abused its discretion in this regard. Nor do we think the verdict excessive.
On the appeal of the company the judgment is affirmed, but reversed on the cross-appeal, and remanded with directions to enter judgment for four thousand dollars in conformity with the verdict of the jury.