Central Passenger Ry. Co. v. Kuhn

• Decision Date: 19 January 1888
• Citation: Central Passenger Ry. Co. v. Kuhn, 86 Ky. 578, 6 S.W. 441 (Ky. Ct. App. 1888)
• Parties: CENTRAL PASSENGER RY. CO. v. KUHN. LOUISVILLE & N. R. CO. v. SAME.
• Court: Kentucky Court of Appeals

6 S.W. 441

86 Ky. 578

CENTRAL PASSENGER RY. CO. v. KUHN.

LOUISVILLE & N. R. CO. v. SAME.

Court of Appeals of Kentucky.

January 19, 1888

Appeal from court of common pleas, Jefferson county.

This was an action brought by Christ Kuhn against the Central Passenger Railway Company and the Louisville & Nashville Railroad Company to recover damages for personal injuries sustained while traveling on a street car of the passenger company. Judgment for plaintiff. Defendants appealed.

Brown Humphrey & Davie, for appellant Central Passenger Ry. Co. Barnett, Noble & Barnett and Wm. Lindsay, for appellant Louisville & N. R. Co. O'Neal, Jackson & Phelps and Kohn & Barker, for appellee.

PRYOR C.J.

The appellee, Christ Kuhn, instituted the present action in the Jefferson court of common pleas against the Central Passenger Railway Company and the Louisville & Nashville Railroad Company, in which it is alleged that, when a passenger on the cars of the passenger railway company, he was injured by being thrown out of the car by reason of a collision between the cars of that company and those of the Louisville &amp Nashville Railroad Company, caused by the joint negligence of the employes of each defendant. The accident occurred in the eastern part of the city at the corner of Baxter avenue at a point where the city railway cars crossed the track of the Louisville & Nashville Railroad. There was a verdict assessing the damages at $5,000, and then a several finding by which the city railway company was required to pay $3,000 of the damages, and the Louisville & Nashville Railroad Company $2,000. Both of the railroad companies have appealed. The plaintiff was injured about 9 o'clock at night in July, 1884; the car in which he was riding being struck by the engine of the Louisville & Nashville Railroad Company in the attempt of the passenger car to cross its track.

The question of negligence was properly submitted to the jury by special interrogatories and by the instructions given; the jury finding that the injury was caused by the concurrent negligence of the two companies. It is apparent from the testimony that each company was guilty of the grossest neglect, and liable to the appellee in damages for the injury sustained by him. It appears from the evidence that where the one track crossed the other was a public thoroughfare, used constantly by those passing in and out of the city, with street cars crossing the track of the steam-railroad company many times during the day and until a late hour at night. That the Louisville & Nashville Railroad Company kept a flag-man at the crossing during the day to warn those passing of the approach of its trains, but at night no flag-man was required to remain, and those passing this dangerous crossing, whether in street cars or other modes of conveyance, were left to provide for their own safety, and to risk the danger of being run over by constantly passing trains, with no other protection than their own knowledge as to the time the trains would pass, or their vigilance in noticing the train's approach. No bars or gates had even been erected; and the trains running by steam day and night over the crossing, with a dense population on each side of the track, left to risk all the danger that was constantly menacing them at this particular point, and at a time when a vigilant flag-man was most needed. Buildings were also located at or near the track, so as to obstruct the view of those crossing when looking in the direction this train approached on the night of the accident. Such a movement of railroad trains in the midst of a dense population, constantly passing over its track, without any one to give notice of the train's approach, was negligence of the most flagrant character. As to the Central Passenger Company, it is manifest that its driver was unfitted for his employment; that he took no pains to satisfy himself of the approach of the train, when others less interested than himself, and not in the cars, saw its approach in time for him to have saved himself if he had exercised even the slightest care. Besides, when he discovered the train's approach, he attempted to cross the track in front of it, when, by the exercise of the slightest care, he might have avoided all danger. It is therefore plain that the injury complained of resulted from the negligence of both companies.

It is proper to notice, first, some of the objections made by counsel for the street-car company during the progress of the trial, and now complained of as error to its prejudice. It is argued that the court below erred in adjudging that the burden of proof was on the street-car company (the collision being admitted) to show that the injury was not caused by its neglect, and at the same time holding that no such rule could apply to the Louisville & Nashville Railroad Company, the other defendant. This record shows that the Central Passenger Company was willing to assume the burden, and asked that it be allowed to first introduce its evidence, and the motion was overruled. The plaintiff was then required to make out his case of negligence against both defendants, but, when the evidence was all in, the court permitted counsel for the passenger company to conclude the argument, and it therefore seems to us that, if either party was prejudiced by this action of the court, it was the plaintiff, and not the defendant. The rule adopted in Railroad Co v. Smith, reported in 2 Duv. 556, places the burden in this case on the company; and, while that case may fail to distinguish properly the class of accidents to the passenger in which the burden is on the carrier from those where the burden is on the plaintiff, still in this case one of the grounds of complaint, or the negligence complained of, is the want of care on the part of the driver, and his want of fitness for the position given him. Cooley on Torts, referring to a Pennsylvania case, (Laing v. Colder, 8 Pa. St. 479; Sullivan v. Railroad Co., 30 Pa. St. 234,) says: " Prima facie, where a passenger, being carried on a train, is injured without fault of his own, there is a legal presumption of negligence, casting upon the carrier the onus of disproving it." "This is the rule when the injury is caused by a defect in the road, cars, or machinery, or by a want of diligence or care in those employed, or by any other thing which the company can or ought to control, as a part of its duty to carry the passengers safely; but this rule of evidence is not conclusive." Cooley, Torts, 663. The injury in this case was the want of diligence in the driver, and the law will presume neglect from the mere fact of the injury; and the burden is on the defendant, who may show that the injury originated from causes the driver could not prevent. The passenger commits himself to the custody and control of the carrier, and if the car breaks, or the car while controlled by the driver should strike an obstruction, as a wall or an embankment, the presumption of negligence arises, and must be overcome by the carrier on the complaint of the passenger injured by the accident. The accident may have been caused by the other defendant, but, if so, it devolved on the company in charge of the passenger to show it. And, further, says Mr. Cooley: "Suppose a railway train thrown from a track from some cause not apparent and the passengers are injured, would it be reasonable to put an injured person to the necessity of discovering and pointing out the cause, and tracing the fault to the company before he could recover; or may he who has intrusted his person and his life to the control of the company, etc., rely on the injury itself as entitling him to redress, and leave to the defense the task of presenting explanatory evidence?" A felon may have placed obstructions on the track, or caused the accident in a manner that no vigilance could guard against, and, if so, it may be easily shown by the company. This rule, placing the burden on the company, is in accord with the doctrine that a common carrier of passenger must exercise the highest degree of care and diligence to prevent injury. Such care as a reasonable and cautions man would use under the circumstances is the diligence required. This rule, says Hilliard, applies to the vehicle, the horses, the harness, the skill, caution, and sobriety of the driver. 2 Hil. Torts, 587. This court, in the case of Railroad Co. v. Ritter's Adm'r, 3 S.W. 591, (decided at the January term, 1887,) recognized the same doctrine, both as to the presumption of negligence, and the care required of the carrier. This case is attempted to be...