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

• Decision Date: 23 October 1907
• Citation: 104 S.W. 748
• Parties: CINCINNATI, N. O. & T. P. RY. CO. v. MOUNTS.
• Court: Kentucky Court of Appeals

104 S.W. 748

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

Court of Appeals of Kentucky.

October 23, 1907

Appeal from Circuit Court, Mercer County.

"Not to be officially reported."

Action by Anna Mounts against the Cincinnati, New Orleans & Texas Pacific Railway Company. From a judgment for the plaintiff defendant appeals. Affirmed.

E. H Gaither and John Galvin, for appellant.

E. V Puryear, Robt. Harding, Hill & McRoberts, and Greene & Van Winkle, for appellee.

CARROLL J.

On the evening of October 29, 1904, appellant, on her way to Danville, Ky. went into the waiting room of the depot of appellant at Burgin to remain until the arrival of the train on which she took passage to Danville. The evidence as to the length of time she remained in the station is conflicting. Some of the witnesses say that she was there about an hour others about 30 minutes, before the arrival of the train on which she desired to take passage. There is also sharp dispute as to the temperature and condition of the weather; the evidence for appellee conducing to show that it was a cold, chilly, and disagreeable day, that for appellant that the thermometer registered 57 degrees, the weather being mild and temperate. Appellee, alleging that the waiting room provided for passengers at Burgin on the occasion mentioned was so cold and uncomfortable as to cause her to contract a deep and violent cold, as the result of which she was confined to her bed for several days and suffered great pain, brought this action to recover damages growing out of the neglect of appellant to provide a comfortable waiting room for passengers. Upon the trial she recovered $400.

No complaint is made of the instructions, nor is there any objection or exception to the evidence introduced; but it is insisted that the testimony, as a whole, established that appellant was not guilty of any negligence in failing to have the waiting room heated by a fire, and that appellee's illness and suffering were due to her failure to exercise ordinary care for her own comfort and protection. It is conceded that there was no fire in the waiting room, and it is not denied that the attention of the station agent was called by a person in the waiting room to its chilly and uncomfortable condition, and a request made to have a fire started. Section 784 of the Kentucky Statutes of 1903 provides, in part, that "all companies shall keep their ticket offices open for...