Louisville, Cincinnati & Lexington Railroad Co. v. Sullivan

• Decision Date: 28 February 1884
• Citation: 81 Ky. 624
• Court: Kentucky Court of Appeals
• Parties: Louisville, Cincinnati & Lexington Railroad Co. v. Sullivan.

Page 624

81 Ky. 624

Louisville, Cincinnati & Lexington Railroad Co. v. Sullivan.

Court of Appeals of Kentucky.

February 28, 1884.

APPEAL FROM OLDHAM CIRCUIT COURT.

HARWOOD & FRENCH AND A. BARNETT FOR APPELLANT.

BULLOCK & BECKHAM FOR APPELLEE.

JUDGE LEWIS DELIVERED THE OPINION OF THE COURT.

This is an action by appellee to recover damages for personal injuries sustained on account of being unlawfully, wrongfully, and by the gross negligence of the conductor of appellant's train of cars, ejected therefrom and exposed to freezing weather while in a helpless condition.

From the evidence it appears that appellant, on the day he was ejected from the train, which was the 25th of December, walked from Cropper's station, on the line of appellant's road, where he was staying temporarily, to Christiansburg, another station, where he obtained whisky, and as the evidence satisfactorily shows, became so intoxicated as to stagger when walking, and was in that condition when, between 3 and 4 o'clock in the afternoon, he got on the train for the purpose of returning to the first named station, distant two and one-half miles; that when the train had gone between one-half and three-fourths of a mile he was approached by the conductor in the baggage car, where he had improperly gone, and requested to pay his fare, which was twenty cents, and refusing, or, as he says, being unable to do so, the train was stopped, and he was compelled to leave the train. He states that when he stepped from the car he fell down upon the snow, which other witnesses testify was at the time eight or ten inches deep, and remained there until next morning, not remembering what occurred in the meantime.

There is some conflict in the testimony as to the precise place the train left him, and also whether he was at the time standing or lying, one of the witnesses, a brakeman, testifying that he was standing, and said to him, "You can kill me, if you like." But about one hour and a half afterwards, near the time for the train going toward Christiansburg to pass, and about two hundred and fifty yards toward Cropper's from the place where the conductor testifies he was put off the train, he was discovered by one of the witnesses lying across the track, helpless and nearly unconscious, with a quart bottle nearly full of whisky, who pulled him off the track, but being unable to remove him from the place, left him.

By reason of his exposure for such length of time to the cold weather, the temperature of which was, as stated by several witnesses, between eight and ten degrees below zero, his feet, hands, shoulder, and parts of his legs and of one arm, were frozen, causing intense suffering and confinement for several months, and the necessary amputation of his toes, several of his fingers, and part of his heel.

Judgment having been rendered in accordance with the verdict of the jury for five thousand dollars, the railroad company has appealed, and assign various errors.

One of the grounds for a new trial was that the damages assessed by the jury are excessive, and appear to have been given under the influence of prejudice.

As this ground is not assigned as an error, it can not be considered on this appeal. Nor can we consider the fourth assignment, which is that the court erred in overruling the motion for a new trial; for, as has been heretofore held, it is too general to raise any question for decision.

The first error assigned is that the court improperly excluded evidence, as set forth in the grounds for a new trial.

The first of the grounds thus in general terms referred to in the assignment is, that appellant was not permitted to prove by the conductor that he would not have put appellee off the train if he had known he could not walk, or was mentally or physically in a helpless condition.

Even if the evidence had been relative and competent, it can not be now considered by the court, because counsel having failed to avow that the witness would so testify, it never was, in fact, passed on by the lower court.

For the same reason this court can not consider the other ground for a new trial, viz.: that the court refused to allow appellant to prove by appellee that he was a dissipated man, and that he was in the habit of or frequently laid out all night.

The second assignment is that the court erred in refusing to render a judgment for defendant upon the special verdict of the jury.

As this as well as the third assignment, which refers to the action of the court in giving and refusing instructions to the jury, involve the question of appellee's right to maintain the action at all, we will consider them together.

Instruction No. 1, given at the instance of appellee, is as follows: "Although the jury may believe from the evidence that plaintiff got on defendant's cars to go from Christiansburg to Cropper's station, and that he had no ticket — and when his fare was demanded he said he had no money, and neither paid his fare nor delivered to the conductor a ticket — yet if they further believe from the evidence that he was then in such a state of intoxication as to render him mentally or physically incapable of taking care of himself, and he was then in such a helpless condition that to put him off said train would necessarily expose him to death, or great danger of being frozen, and that defendant's agents in charge of said train at the time knew plaintiff's helpless condition and the danger he would be exposed to, being then and there ejected from said train, then they should find for plaintiff such compensatory damages as he may have sustained thereby, as were the necessary and proximate results of his having been put off the train, not exceeding $25,000."

Two instructions were asked by appellant, but as one of them was given so modified as to harmonize with the one given at the instance of appellee, and the one refused is the reverse of it, we need not quote them.

The following facts were found by special verdicts of the jury:

1. That though requested, appellant, while on the train, refused to either pay his fare or deliver to the conductor his ticket.

2. He was at the time intoxicated, and in such a helpless condition as to be incapable of taking care of himself, and the conductor knew it when he put him off.

3. The conductor in ejecting him from the train used no more force than was necessary for that purpose.

From the facts found by the jury and the evidence in the case, it is clear that even slight diligence and care on the part of the conductor would have enabled him to prevent the injury done to appellant.

It is clear, also, that the act of the conductor was within the scope and in the course of his general authority, and hence appellant must be held responsible for whatever liability attaches thereto.

It being thus established that at the time appellee was put off the train he was himself a trespasser, and that the calamity which befell him was brought on, in part at least, by his own conduct in getting drunk, the question that arises is, whether the act of the conductor is to be held in law, as it is in fact, gross negligence for which appellant may be made liable.

The right generally of railroad companies to put off their trains persons who refuse to pay their fare, when requested by the conductor, may be conceded; but does it follow that this right may be exercised in such...