Cincinnati, N.O. & T.P. Ry. Co. v. Rue

• Decision Date: 10 March 1911
• Citation: 134 S.W. 1144,142 Ky. 694
• Parties: CINCINNATI, N. O. & T. P. RY. CO. v. RUE.
• Court: Kentucky Court of Appeals

134 S.W. 1144

142 Ky. 694

CINCINNATI, N. O. & T. P. RY. CO. v. RUE.

Court of Appeals of Kentucky.

March 10, 1911

Appeal from Circuit Court, Jessamine County.

Action by Jesse Rue, by his next friend, Joseph Rue, against the Cincinnati, New Orleans & Texas Pacific Railway Company. From a judgment for plaintiff, defendant appeals. Reversed.

N. L Bronaugh and John Galvin, for appellant.

Everett B. Hoover, for appellee.

SETTLE J.

The appellee, Jesse Rue, an infant 18 years of age, by his next friend, Joseph Rue, brought this action in the court below against the appellant, Cincinnati, New Orleans & Texas Pacific Railway Company, to recover damages in the sum of $1,800 for an alleged assault and battery committed upon the infant appellee by its servants in charge of a freight train. It was, in substance, alleged in the petition that while the infant appellee was "upon and about" the freight train the crew in charge thereof, consisting of James Keith conductor, Thomas Headly and Pink Blair, brakemen, in order to prevent him from riding on the train, "did wrongfully, unnecessarily, negligently, unlawfully, and maliciously shoot at, assault, beat, bruise, and kick the said Jesse Rue, and curse, threaten to kill, injure, and mistreat him, thereby causing him great bodily and mental pain and suffering." The answer did not deny that the crew of the freight train was composed of the persons named but traversed all other averments of the petition. The trial resulted in a verdict in favor of appellee for $500 damages, and judgment was duly entered in conformity thereto. Appellant was refused a new trial, and has appealed.

Numerous grounds were filed in support of the motion for a new trial; but those most strongly urged were (1) that the court did not properly instruct the jury; (2) that the verdict was contrary to and unsupported by the evidence; (3) that the jury should have been peremptorily instructed to find for the appellant. In order to determine whether any of the foregoing grounds merit a ruling from us favorable to appellant, consideration of the evidence appearing in the record will be necessary.

According to the evidence of appellee, furnished mainly by his own testimony, he and two companions, James Coovert and Boone Phelps, both adults, rode upon one of appellant's passenger trains on Sunday March 27, 1910, from High Bridge to Lexington, and spent the afternoon and evening in that city. There being no night passenger train upon which they could return to High Bridge, at 2 o'clock on the morning of March 28th, they boarded at Lexington, without the permission of appellant or any of its servants, a freight train going south to High Bridge that they might return to their homes at that place. After getting upon the train, they so secreted themselves that their presence thereon did not become known to the train crew. When near Nicholasville and in eight miles of High Bridge, the freight train in going up a heavy grade became uncoupled, and was stopped. When it stopped, appellee got off the train on the left side thereof. His two companions got off on the right, and remained in hiding during the scenes that followed. Appellee, however, according to his testimony, was less fortunate, for, as he walked off down the railroad and beside the track, he was seen by Pink Blair, one of the train crew, who started toward him with the remark, "Here he is, Tom," at the same time firing a shot from a pistol held in his hand. Appellee ran some distance followed by Blair, who again fired the pistol, and said: "Stop, you God damn son of a bitch, or I'll kill you." Appellee continued to run, followed by Blair, until he got over a fence and off appellant's right of way, but, being in fear of the pistol, he, at Blair's command, permitted the latter to approach him. Blair accused him of uncoupling the train, which appellee denied. Blair, with others of the train crew, who had in the meantime come up, then took appellee back to the train, on the way threatening to deliver him to a peace officer. Upon arriving at the train Blair, and others of the crew, as further testified by appellee, assaulted, kicked, and knocked appellee down, after which the train departed for its destination, leaving appellee standing near the track. His two companions came out of their place of concealment after the train left, and walked with him to High Bridge. They testified that they did not see the train crew assault or strike appellee, as the train separated them from appellee and his assailants, and so obstructed the view from their place of concealment as to prevent them from witnessing what occurred; but they heard the pistol shots and some of the crew's abuse of appellee, and saw bruises and blood upon his face after they got with him following the departure of the train.

The evidence introduced in behalf of appellant conduced to show that appellee and his two companions had freely partaken of intoxicants while in Lexington, and conclusively proved that their presence on the train was not known to the train crew until the train became uncoupled and was stopped. Indeed, it was admitted by appellee and his companions that their presence on the train was unknown to the crew, and that they rode and were concealed upon a flat car containing an oil tank, which was separated by several box cars from the caboose. Appellant's evidence further conduced to prove that the uncoupling of the train was not accidental, but accomplished by the intentional act of some person on the train, for none of the coupling apparatus of either of the cars at the place of uncoupling was broken or out of repair, and the lever by which the coupling pin of the drawhead of one of the cars was raised and lowered was found in a position which demonstrated that the uncoupling was effected by a person familiar with the only method by which it could be done.

Appellee and his companions on cross-examination denied that they had uncoupled the train, and there was no satisfactory evidence that they did so, but the fact that the train had been uncoupled and that appellant's train crew believed it to have been done by appellee gave occasion for the anger the latter testified they manifested toward his following his capture by Blair. The testimony of the members of the train crew was in most respects contradictory of that of appellee. Blair testified that upon his going, after the train stopped, to where it became uncoupled to ascertain the cause of the uncoupling, he discovered appellee, who was then leaving the opening in the train where it had been uncoupled; that he called to appellee and he began to run as if to escape, and, when he failed to stop at Blair's command to him to do so, Blair, calling other members of the train crew to his assistance, pursued him and fired his pistol into the air to frighten and stop him, whereupon appellee stopped and went to Blair and was taken by him back near the train; that Blair then asked him what he was doing on the train and accused him of uncoupling it, and appellee replied that he was not on the "damn train," and had not uncoupled it, and that Blair was a liar; that Blair retorted by calling him another; that appellee then said Blair was a damn liar, and put his hand in his pocket as if to draw a weapon, and Blair then struck appellee, but did not knock him down; that appellee then started to run, but got his feet entangled in some vines and fell, and then admitted he had been riding on the train, but denied that he had uncoupled it, saying, however, that he had two partners with him on the train, and they might have uncoupled it.

Blair's version of what occurred, was fully corroborated by his fellow brakeman, Headly, and in large measure by the conductor, Keith, though the latter did not claim to have seen all that took place. It does not appear, however, from the testimony of any of them that there was a denial of appellee's statement that he was bruised and his face made to bleed. If their account of what took place was the true one, it would seem reasonably apparent that the assault and battery committed upon appellee was the act of Blair alone, and that it was done in his necessary self-defense. On the other hand, if appellee's version of the matter was the true one, it would seem equally apparent that he was the victim of a malicious and unlawful assault and battery.

It is the province of a jury to pass upon and decide questions of evidence, and especially is this so, if the evidence is contradictory or conflicting; but it sometimes becomes the duty of the trial court, even where there is evidence both for and against the party seeking a recovery, to enter a nonsuit or direct the finding of the jury. This duty the law imposes on the court when the evidence as a whole fails to show a right of recovery in the party seeking it, or, to express our meaning in language employed by this court "To authorize an instruction as in case of a nonsuit, it should appear that, admitting his testimony to be true, and every inference that is fairly deducible from it, the plaintiff has still failed to support his claim." Shay v. R. & L. T. P. Co., 1 Bush, 108; Morris' Adm'r v. L. & N. R. R. Co., 61 S.W. 41, 22 Ky. Law Rep. 1593. As the appellant, after the introduction of appellee's evidence, and again at the close of all the evidence, asked the trial court to peremptorily instruct the jury to find for it and the request was in each instance...