Davis v. Allen

• Decision Date: 29 May 1923
• Citation: 199 Ky. 442,251 S.W. 194
• Parties: DAVIS, AGENT, v. ALLEN.
• Court: Kentucky Court of Appeals

251 S.W. 194

199 Ky. 442

DAVIS, AGENT, v. ALLEN.

Court of Appeals of Kentucky.

May 29, 1923

Appeal from Circuit Court, Knox County.

Action by Bessie Allen against James C. Davis, as agent. Judgment for plaintiff, and defendant appeals. Affirmed.

John Marshall, Jr., and B. D. Warfield, both of Louisville, and Black, Black & Owens, of Barbourville, for appellant.

J. D Tuggle and J. B. Campbell, both of Barbourville, for appellee.

McCANDLESS J.

In a suit in the Knox circuit court, Mrs. Bessie Allen recovered a judgment of $700 against the Director General of Railroads for personal injuries, and this appeal results. Her evidence is to the effect that on the 30th day of November, 1918, she and her husband purchased tickets, and with their two small children took passage on a train of the Louisville &amp Nashville Railroad Company, at Emanuel, a small station in Knox county, en route to Pineville. They spent the previous night with plaintiff's brother, who lived about 100 yards from the railroad station and walked over to it, arriving 15 or 20 minutes before the schedule time for the train, which they afterward learned, was 20 minutes late.

It was a cold winter day, with a stiff wind blowing, but there was no fire in the waiting room. Plaintiff's husband called the attention of the ticket agent to this and requested that a fire be made. The answer of the latter does not appear, but no action was taken.

One passenger left and went to a store to get some change and there awaited the arrival of the train. He suggested this to plaintiff, but the store was across a narrow bridge on the opposite side of the railroad from the platform and at a distance variously estimated at from 100 to 400 feet, and she feared to make the trip with her children.

A short time before the arrival of the train her husband requested the agent to permit her and her children to enter the ticket office and warm by the fire. This request was granted and they remained there until its arrival. This consisted of a colored compartment, smoker, and ladies' coach. Plaintiff's party were seated in the latter, but there was no fire and the windows were raised. Her husband lowered the window at their seat and requested the flagman to start a fire, but this was refused and they were not invited to any other coach or informed that any of the others was more comfortable. One witness voluntarily sought warmth in a different coach, but did not see much diference in the two.

The trip from Emanuel to Pineville consumed an hour. During this time and while in the waiting room, plaintiff was shaking and shivering and when she alighted at Pineville was sneezing and suffering from the effects of a cold. This developed into la grippe, and on the third day she was taken to her bed, and thereafter was confined to it in a helpless condition for a period of six weeks. Prior thereto she had a slight heart trouble, but it does not appear that her heart was involved in this sickness. No evidence was introduced by the defendant.

On this appeal it is insisted that a peremptory instruction to find for the defendant should have been given because (a) this was at the period of the influenza outbreak and appellant's agents were endeavoring to prevent the spread of that disease, and were not negligent; (b) appellee contracted influenza, which is a germ disease, and not caused by exposure, and if negligence existed it was not the proximate cause of her injuries; (c) if negligent, it cannot be told with any degree of certainty whether she suffered from influenza, for which he is not responsible, or for a cold, for which he may be liable, and the jury should not be allowed to speculate upon this question; (d) upon discovering the condition of the waiting room it was appellee's duty to seek a place of warmth and comfort by going to the store, or to her brother's or by asking to enter the ticket office, and while upon the train if the coach was uncomfortable to seek another; that she was under the latter obligation to minimize her damages even if a failure in that respect did not as a matter of law constitute contributory negligence, and it was error not to instruct the jury on this point.

Complaint is also made as to incompetent evidence, refusal to give proper...