Louisville & N.R. Co. v. Ritter's Adm'r

• Citation: 85 Ky. 368,3 S.W. 591
• Parties: LOUISVILLE & N. R. Co. v. RITTER'S ADM'R.
• Decision Date: 15 March 1887
• Court: Court of Appeals of Kentucky

3 S.W. 591

85 Ky. 368

LOUISVILLE & N. R. Co. v. RITTER'S ADM'R.

Court of Appeals of Kentucky.

March 15, 1887

Appeal from circuit court, Barren county.

Wm Lindsay and Porter & McQuown, for appellant.

W. P D. & F. F. Bush and Leslie & Botts, for appellee.

BENNETT J.

In May 1876, the appellant's passenger train, while en route to Louisville, came in collision with a cow which was on the railroad track. The collision threw one of the passenger coaches from the track. The appellee's intestate was in this coach as a passenger, having paid his fare as a passenger from Glasgow to Louisville, and was injured by reason of the collision and throwing of the coach from the track. The trial of appellee's action against the appellant for the injuries received by his intestate in the collision resulted in a verdict and judgment for $1,500 in damages. Appellant has appealed from that judgment.

Railway-passenger carriers, in legal contemplation, do not insure the absolute safety of their passengers; but they do bind themselves to exercise the utmost degree of human care, diligence, and skill in order to carry their passengers safely. It is meant by this rule (1) that the highest degree of practicable care and diligence should be exercised that is consistent with the mode of transportation adopted; (2) that competent skill should be possessed, which should be exercised in the highest degree. Tested by this rule, for the slightest neglect against which human prudence, diligence, or skill can guard, and by which injuries accrue to passengers, the carriers will be liable in damages. This high degree of care, diligence, and skill extends, not only to the running of passenger trains, with a view to the safety of passengers, but to providing against defects in the road, cars, or machinery, or any other thing that can and ought to be done in order to carry passengers safely. Among these duties is that of keeping the track clear of obstructions, and of removing timber and bushes along the track on the land of the company, so as to keep the engineer's view of the track, in running the train, unobstructed. A failure to do this, or any of the duties above mentioned, is negligence.

Prima facie, where a passenger, being carried on a train, is injured by an accident occurring to the train, the legal presumption arises that the accident and consequent injury was caused by the negligence of the carriers; and the onus of disproving the presumption of negligence, by showing that the injury arose from an accident which the utmost care, diligence, and skill could not prevent, is on them; or that, in actions for ordinary neglect, although negligent themselves, the injury to the passenger would not have occurred but for his own negligence. Of course, where death ensues to a passenger by the willful neglect of carriers, they are not allowed to rely upon the contributory negligence of the passenger as a defense. The foregoing views are sustained by the following authorities and leading cases: 2 Redf. Rys. 229; Story, Bailm. § 601; Jamison v. San Jose & S. C. R. Co., 55 Cal. 597; Pittsburg, C. & St. L. R. Co. v. Thompson, 56 Ill. 142; Pennsylvania Co. v. Roy, 102 U.S. 456; Railroad Co. v. Varnell, 98 U.S. 480; Railroad Co. v. Pollard, 22 Wall. 347; Meier v. Pennsylvania R. Co., 64 Pa. St. 226; Ohio & Memphis Packet Co. v. McCool, 8 Amer. & Eng. R. Cas. 394; New Orleans & G. N. R. Co. v. Allbritton, 38 Miss. 274; Baltimore & O. R. Co. v. Worthington, 21 Md. 284.

The three instructions given by the lower court on behalf of the appellee accord with the foregoing view of the law, except in this: The burden of proof was on the appellee to establish the accident, and his...