South Covington & C. St. Ry. Co. v. Ware

• Decision Date: 25 September 1886
• Citation: 84 Ky. 267,1 S.W. 493
• Parties: SOUTH COVINGTON & C. ST. RY. Co. v. WARE.
• Court: Kentucky Court of Appeals

1 S.W. 493

84 Ky. 267

SOUTH COVINGTON & C. ST. RY. Co. v. WARE.

Court of Appeals of Kentucky.

September 25, 1886

Appeal from Kenton circuit court.

This is an action by James R. Ware against the South Covington &amp Cincinnati Street Railway Company for damages for injury to person. A jury found for the plaintiff $4,000 damages, and the defendant appeals.

W. W Cleary and John C. Benton, for appellant.

Hallam & Meyers, for appellee.

HOLT J.

The right of a person to recover damages for a personal injury is not affected by his having contributed to it, unless he was in fault in so doing. He may, indeed, not only contribute to it, but be the immediate cause of it, and yet recover. Thus, if a passenger, under a reasonable apprehension that a collision or other accident is imminent changes his position to one in fact more dangerous, or even leaps from the vehicle which is in motion, yet he may recover damages if he be injured; and this is true even though it may afterwards appear that if he had sat still he would not have been injured. One is bound, under such circumstances, to exercise all the prudence and care that ordinarily characterizes the conduct of a prudent man.

Thompson on Negligence (volume 2, p. 1092) says: "If A., through his negligence or fault, put B. in a position of immediate danger, real or apparent, and B., through a sudden impulse of fear, makes a movement to escape the danger, and in doing so accidentally receives another and different injury from that threatened by negligence of A., he may recover damages of A for A.' s negligence or fault is the proximate cause of the injury. Thus a coach suddenly breaks down, going at a moderate gait on a level road. A passenger seated upon the top, becoming alarmed, leaps to the ground, and thereby sustains an injury. If he had remained seated, he would not have been injured. The breaking of the coach is the proximate cause of the injury; and, if this happened through the negligence of the proprietor, he must pay damages, otherwise not. A fortiori, if the negligence of B. compels A. to adopt a particular course, which he would not have adopted but for such negligence, and, in so acting with ordinary prudence, A. is injured, he may recover damages of B."

It is urged that, when one is frightened by something resulting from the neglect of the carrier, he cannot be charged with contributory neglect to any extent. He, however, must act upon a reasonable apprehension of peril. His conduct must conform to that of an ordinarily careful man under like circumstances. He has no right, upon the happening of some trivial occurrence, or such as would not create fear or apprehension of injury in the mind of an ordinarily prudent and careful person, to bring injury upon himself, and then recover damages by reason of it. This rule is sustained by both reason and precedent.

The supreme court of the United States, in the case of Stokes v. Saltonstall, 13 Pet. 191, said: "But if the want of proper skill or care of the driver placed the passengers in a state of peril, and they had at that time a reasonable ground for supposing that the stage would upset, or that the driver was incapable of managing his horses, the plaintiff is entitled to recover, although the jury may believe, from the position in which the stage was placed by the negligence of the driver, the attempt of the plaintiff or his wife to escape may have increased the peril, or even caused the stage to upset, and although they may also find that the plaintiff and his wife would probably have sustained little or no injury if they had remained in the stage."

Mr. Pierce states the rule thus: "If, through the default of the company or of its servants, the passenger is placed in such a perilous condition as to render it an act of reasonable precaution, for the purpose of self-preservation, to leap from the cars, the company is responsible for the injury he receives thereby, although if he had remained in the cars he would not have been injured."

The same doctrine is announced in the cases of Railroad Co. v. Paulk, 24 Ga. 356; Railroad Co. v. Morris, 31 Grat. 200; Frink v. Potter, 17 Ill. 406.

The character of the impending danger, or, at least, its apparent character, is to be considered. If one acts unreasonably or rashly, or becomes frightened at a trivial occurrence which would not alarm a reasonably prudent man, and thereupon brings injury upon himself, then there would be no liability. Thus, if one were to throw himself under the wheels of a stage upon the happening of some circumstance not of a character to alarm a reasonably prudent man, its owner would not be liable. The question must be submitted to the jury whether, under the circumstances, the party acted rashly, and under an undue apprehension of danger.

We think this...