81 Ky. 624 (Ky.App. 1884), Louisville, C. & L. R. Co. v. Sullivan
|Citation:||81 Ky. 624, 5 Ky.L.Rptr. 722|
|Opinion Judge:||LEWIS, JUDGE:|
|Party Name:||Louisville, Cincinnati & Lexington Railroad Co. v. Sullivan.|
|Attorney:||HARWOOD & FRENCH AND A. BARNETT FOR APPELLANT. BULLOCK & BECKHAM FOR APPELLEE.|
|Case Date:||February 28, 1884|
|Court:||Court of Appeals of Kentucky|
1. The ground for a new trial, that the damages assessed by the jury are excessive, is not assigned for error, and can not be considered.
2. That " the court erred in overruling appellant's motion for a new trial" is too general to raise any question for decision.
3. The error assigned, that the court refused to permit the conductor to prove that he would not have put the appellant off the train if he had known he could not walk, can not be considered, because appellant failed to make any avowal that the witness would so testify.
4. For the same reason the error assigned that the court refused to permit appellant to prove that he was a dissipated man, will not be considered.
5. While 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, that right must be exercised with proper regard to the physical and mental condition of the person, and also to the surrounding circumstances.
6. A person refusing to pay his fare upon the demand of the conductor becomes a trespasser, yet to eject him from the train when he is in such physical or mental condition as that serious bodily harm may result from it, is culpable negligence, and is actionable.
7. When the negligence of the defendant is the proximate cause of the injury, but that of the plaintlff is remote, consisting of some act or omission not occurring at the time of the injury, the action can be maintained, although the plaintiff is himself not without fault.
APPEAL FROM OLDHAM CIRCUIT COURT.
The court erred in refusing to allow appellee to prove by appellant his dissipated habits, and also erred in refusing to permit appellant to prove by the conductor that if he had known appellee was drunk, he would not have put him off the train.
The question to appellee states the fact, and therefore the bill of exceptions shows the fact we expected to prove.
The court erred in permitting proof as to the intoxication of appellant when he was put off the car.
Further erred in refusing to modify the instruction given for appellant upon the subject of his intoxicated condition.
The question of negligence is a mixed question of law and fact. The proof for appellee never reached the point that the court should have permitted the case to go to the jury.
The verdict is not sustained by the evidence, and the court erred in refusing to render judgment for appellant on the special findings.
(19 Ohio St. 151; 24 Vt. 487; Hutchinson on Carriers, sec. 555; 81 Ills., 245, 292; L. & N. R. R. Co. v. Fox, 11 Bush, 495; Sullivan v. Lou. Bridge Co., 9 Ib., 90; P. & E. R. R. Co. v. Hoehl, 12 Ib., 43; Watson v. Crow, 2 Duv., 148.)
Appellant's objection, on the ground that the court refused to permit Watson, the conductor, to prove that he would not have ejected appellee from the train if he knew that the latter was drunk, and the refusal to permit appellee to answer the question as to his habits, can not be considered by this court, because appellant made no avowal of what he could prove by either. Without such an avowal this court, as it has repeatedly held, will not look into the question. ( Brown v. The Commonwealth, 14 Bush, 410; Tippee v. same, 1 Met., 6; Bowles v. Lane, 3 Ib., 311; Chrystal v. same, 9 Bush, 669; Nichols v. same, 11 Ib., 575.)
It has been held by this court that a special verdict should be liberally construed. ( 4 Dana, 271; Farmer v. Gregory, 78 Ky. 475; Civil Code, sec. 756.)
That " the court erred in overruling appellant's motion for a new trial" is too general, and will not be considered. ( Maxwell v. Dudley, 13 Bush, 403; O'Reargen v. Sullivan, 14 Ib., 185; 9 Ib., 90.)
There is no error in the instructions. The petition and proof show wilful and culpable negligence on the part of the conductor in putting appellee off the train in his intoxicated condition. (Sanders' Neg., 58; 12 Bush, 39; 8 Dana, 9; Ib., 195; 3 Ib., 43; 24 Vt. 487; 37 Cal. 400; Railroad Co. v. Vallely, 7 Law Rep.; Smith v. Morrow, 5 Litt., 218; Tevis v. Eliza, 7 Dana, 404; L. & N. R. R. Co. v. Fox, 11 Bush, 495.)
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...
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