Brown v. Louisville Ry. Co.

• Decision Date: 23 November 1899
• Citation: 53 S.W. 1041
• Parties: BROWN v. LOUISVILLE RY. CO. [1]
• Court: Kentucky Court of Appeals

53 S.W. 1041

BROWN v. LOUISVILLE RY. CO. ^[1]

Court of Appeals of Kentucky.

November 23, 1899

Appeal from circuit court, Jefferson county, law and equity division.

"Not to be officially reported."

Action by Bridget Brown against the Louisville Railway Company to recover damages for personal injuries. Judgment for defendant, and plaintiff appeals. Reversed.

Matt O'Doherty, for appellant.

Fairleigh & Straus, for appellee.

PAYNTER J.

The appellee operates a street railway in the city of Louisville. It is averred by the appellant in her petition that she was a passenger on one of appellee's cars, propelled by mules on Seventh street, in the city of Louisville; that she had paid her fare as a passenger thereon; that as the car approached the intersection of Seventh and St. Catharine streets she gave the driver of the car a signal to stop, so that she might alight therefom; that in response to the signal he stopped it, and she proceeded promptly to alight therefrom; that as she was in the act of so doing "she was, by reason of the gross negligence of the defendant in failing at the time to have a conductor on said car, and by the gross negligence of defendant's agent in charge of the said car, in causing the same to move suddenly forward while she was in the act of stepping therefrom, thrown from said car to the pavement, and thereby through the gross negligence of the defendant, its agents and servants, was greatly bruised and injured in her body and limbs, which caused her to suffer great pain and agony and great loss of time, and has permanently impaired her health," etc. The answer admits that the appellant was a passenger on the car, and states that she alighted therefrom but denies that the appellee was guilty of any negligence which caused her injury. It is averred in the answer that she alighted from the car in safety, and started to walk across the street after she had alighted from same, and, by reason of her own negligence, carelessness, and want of care, fell on the street and received the injuries; that this occurred after the appellee had discharged all of its duties towards her, and the relation of passenger and carrier had ceased.

Counsel for appellant, in his opening statement to the jury, said her injuries were traceable, not only to the negligence of the driver of the car, but to the negligence of the appellee in failing to have a conductor on it. Thereupon the court interrupted counsel, and told the jury that they must not consider the absence of the conductor on the car as affecting appellee's liability. The court refused to permit the appellant to prove the necessity of having a conductor on the car, to render safe the transportation of passengers on it. In other words, the court said, as a matter of law, it was not the duty of the company to have a conductor on the car in question. This court does not, as a matter of law, say that it was or was not the duty of the company to have had a conductor on the car. There is no averment in the petition that it was necessary to have a conductor on the car for the safe transportation of passengers. The averment "that by gross negligence of the defendant in failing to have a conductor," etc., is not sufficient to raise the issue of fact as to the necessity of having a conductor on the car for the transportation of passengers. Therefore the question is not before us,...