Wise v. Covington & Cincinnati St. Ry. Co.

• Citation: 16 S.W. 351,91 Ky. 537
• Parties: WISE v. COVINGTON & C. ST. RY. CO.
• Decision Date: 14 May 1891
• Court: Court of Appeals of Kentucky

16 S.W. 351

91 Ky. 537

WISE v. COVINGTON & C. ST. RY. CO.

Court of Appeals of Kentucky.

May 14, 1891

Appeal from circuit court, Kenton county.

"To be officially reported."

Hallam & Myers, for appellant.

O'Hara & Bryan, for appellee.

PRYOR J.

The appellant, as is alleged in his petition, while a passenger on the street-car of the appellee, was insulted and abused by the driver in such a manner as caused him to leave the car, when he was pursued by the driver, and beaten with an iron rod, to his great injury. The appellee in its answer denies the insult or the beating by the driver, and, for further defense, says that the appellant abused and assaulted the agent of the defendant, while he was a passenger, and, after leaving the car and reaching the street away from the car abused and cursed its agent, and the latter, without the consent or knowledge of the defendant, and not in the course of his employment, left the car, to resent the abuse and insult offered him by the plaintiff, when an altercation took place between the driver and the plaintiff, which is the same assault and beating complained of. On the trial of the case there was proof on the part of the plaintiff showing his abuse by the defendant's agent, and his leaving the car his being pursued by the agent to the street or sidewalk where he was beaten by the agent, as alleged in the petition. There is also testimony sustaining defendant's version of the altercation. When the evidence was through, the court below confined the jury in its consideration of the case to what occurred on the car, and excluded all the testimony relating to the altercation on the street, to which there was an exception. This instruction was based, doubtless, on the idea that, the second paragraph of the defendant's answer not being replied to or traversed in any way, it was an admission that the altercation took place on the street, and in the manner alleged; for if it began on the car, with the driver in fault by insulting the plaintiff, or using obscene language to him, when the plaintiff was not the aggressor and then immediately pursuing him after he left the car, and beating him, it was but a continuation of the wrong began on the car, and for which the company would be responsible. In the case of Winnegar's Adm'r v. Railway Co., reported in 85 Ky. 547, 4 S.W. 237, the general doctrine was recognized that the employer was not responsible when the employe was not acting within the scope of his employment; and illustrated the rule by saying that, "if the...