Chesapeake & O. Ry. Co. v. Robinett

• Decision Date: 29 January 1913
• Citation: 151 Ky. 778,152 S.W. 976
• Parties: CHESAPEAKE & O. RY. CO. v. ROBINETT.
• Court: Kentucky Court of Appeals

152 S.W. 976

151 Ky. 778

CHESAPEAKE & O. RY. CO. v. ROBINETT.

Court of Appeals of Kentucky.

January 29, 1913

Appeal from Circuit Court, Floyd County.

Action by Elizabeth Robinett against the Chesapeake & Ohio Railway Company. Judgment for plaintiff, and defendant appeals.

Reversed and remanded for new trial.

Walter S. Harkins and Joseph D. Harkins, both of Prestonsburg Worthington, Cochran & Browning, of Maysville, and F. T. D Wallace, of Louisa, for appellant.

James Goble, of Prestonsburg, for appellee.

SETTLE J.

In this action the appellee, Elizabeth Robinett, in her own right and by her father as next friends, recovered of the appellant Chesapeake & Ohio Railway Company, in the court below a verdict and judgment for $500 damages on account of an assault and battery alleged to have been wrongfully committed upon her, while a passenger on one of its trains, by the conductor thereof and others of the crew in charge of the train. Appellant complains of the judgment and refusal of the circuit court to grant it a new trial, hence this appeal.

It was, in substance, alleged in the petition that she and her father, with round-trip tickets in their possession, got aboard of the train at Catlettsburg for the purpose of returning to their home at Harold, Floyd county, from which they had that morning gone to Catlettsburg; that soon after, together, taking a seat in the car her father leaned his head on the back of a seat in front of them and fell asleep; that shortly thereafter appellant's conductor approached them and demanded of her father his ticket, whereupon she told the conductor that her father was asleep and she would get from him his ticket and deliver it to him; but that the conductor refused to permit her to do so, and before her father could be awakened, without provocation, violently assaulted, struck, and knocked him against her and across her lap, causing the father's head to come in contact with and break the glass in the car window and his body to knock her against the arm of the car seat or window, thereby injuring her side and causing her great pain and fright. It was further alleged in the petition that, after the conductor had thus assaulted her father and injured her, he and other servants of appellant wrongfully and forcibly ejected her father from the train; that his ejection from the train caused her two brothers, who were on the same train, to get off that they might remain with and care for their father, which left her in the car suffering from the injury to her side and from fright, with none of her family present to minister to her needs during the remaining 50 miles of her journey.

The appellant's answer traversed the averments of the petition as to the injuries sustained by the appellee, but admitted the assault and battery upon the father, alleging justification, however, on the grounds that he refused to give up his ticket when requested by the conductor to do so, and that, upon being told by the conductor he must surrender the ticket or pay his fare, he cursed and kicked the conductor and one of his assistants, whereupon the former, in his necessary self-defense and in defense of his assistants, struck and shoved him over on the seat, but not upon or against appellee, and later, with the aid of his assistants, put him off the train. It was further alleged in the answer that the ejection of appellee's father was rendered necessary by his refusal to surrender his ticket or pay his fare and by his abuse of and assault upon the conductor and assistants, and that his removal from the train was accomplished without unnecessary force or violence. Appellant complains that the court erred in refusing to give the peremptory instruction asked by it at the conclusion of appellee's evidence, and again after all the evidence was introduced.

This complaint is based upon the theory, not that there was no evidence in appellee's behalf which conduced to prove the facts relied on as showing a right of recovery, but because the facts themselves did not entitle her to recover. In other words, it is argued that the assault and battery complained of, even if not justifiable as claimed by appellee, was committed upon her father and not upon her, and that for fright or injury, which she may have sustained from the assault and battery committed upon the father or any consequence thereof, appellant cannot be held liable. This contention rests upon a misapprehension of the law. This question was directly decided in McGee, etc., v. Vanover, 148 Ky. 737, 147 S.W. 742. In that case the plaintiff, Nancy Vanover, sued to recover of the defendants, McGee and Evans, damages for an assault and battery committed by them upon her husband in her presence, and in committing which Evans struck or pushed and injured her. She obtained a verdict and judgment against both McGee and Evans. On an appeal taken by the latter, we reversed the judgment as to McGee and affirmed it as to Evans. This was because it was neither alleged in the petition nor shown by the proof that the assault and battery committed by McGee upon her husband, though in her presence, was accompanied by any physical impact with or physical injury to her, and that for pain and suffering resulting to her solely from fright, superinduced by the assault and battery committed upon her husband by McGee, the damages were too remote and speculative to authorize a recovery as to him. But the recovery was allowed to stand as to Evans because it was alleged in the petition and shown by the evidence that he, in committing an unjustifiable assault and battery upon the husband, struck or pushed the wife out of his way, which constituted an assault and battery upon her, as it furnished the necessary physical impact which, if it, in whole or in part, caused her the fright and other injuries complained of, entitled her to have the case go to the jury as to him.

Explanation of the foregoing ruling will be found in the following excerpt, from the opinion: "It is not alleged in the petition or shown by the evidence that the appellant McGee struck, assaulted, or otherwise came in contact with the appellee, Nancy Vanover, during his fight with her husband, nor is it alleged or proved that she apprehended any danger or injury to her person from him; but her sole complaint as to him was that the fright occasioned by his assault and battery upon her husband superinduced the pain and suffering she sustained, together with the subsequent miscarriage. In view of the rule announced by the authorities, supra, she should not have been allowed to recover as against the appellant McGee. The attitude of the appellant Evans with respect to the injuries sustained by the appellee, Nancy Vanover, is wholly different, as it was charged in the petition, and shown by the evidence, that he struck or pushed her in assaulting her husband. He denied, however, that this was intentional. In our view of the case, the striking or pushing of the wife by Evans, whether intentional or otherwise, that he might get to and make an attack upon her husband, furnished the physical impact essential to her right of action; and if such physical impact alone, or together with his wrongful acts complained of, caused, in whole or in part, the fright and other injuries sustained by appellee, she was entitled to have the case go to the jury as to him. Obviously, if, as the evidence conduced to prove, Evans in wrongfully attempting to commit an assault and battery upon the husband forcibly came in contact with the wife, who stood between him and the object of his wrath, his act, in so doing, was as much an assault and battery upon her is if she, instead of the husband, had been the object of his attack. If one unlawfully and with malice aforethought, not in his necessary self-defense, shoot at another and kill an innocent bystander instead of the intended victim, his act would be as much murder as if he intended the shot for the person slain."

The same principle, though applied to a different state of facts was announced by us in ...