Illinois Cent. R. Co. v. Whittaker

• Decision Date: 13 June 1900
• Parties: ILLINOIS CENT. R. CO. v. WHITTAKER. [1]
• Court: Kentucky Court of Appeals

57 S.W. 465

ILLINOIS CENT. R. CO. v. WHITTAKER. ^[1]

Court of Appeals of Kentucky.

June 13, 1900

Appeal from circuit court, Grayson county.

"Not to be officially reported."

Action by Charles Whittaker against the Illinois Central Railroad Company to recover damages for personal injuries. Judgment for plaintiff, and defendant appeals. Affirmed.

James S. Wortham and Pirtle & Trabue, for appellant.

J. C Graham, J. R. Layman, J. H. Rice, and W. S. Pryor, for appellee.

BURNAM J.

The appellee was a passenger on one of the appellant's regular passenger trains from Caneyville to Millwood, and in attempting to alight therefrom on the arrival of the train at the latter station he fell or was thrown under the wheels of the train, and his left leg was so badly crushed as to require its amputation just below the knee. Appellee alleges that when the train reached Millwood it did not stop long enough to enable him to get off with safety, and that while he was attempting to do so the agents of appellant negligently started the train, and as a result of such negligence he was injured. The answer of appellant denies the negligence, and pleads that the train was stopped at the station long enough for appellee to have left it with safety but that he negligently delayed alighting therefrom, and that after it had started on its journey he recklessly and negligently jumped or stepped therefrom, and by reason thereof he suffered the injuries complained of. A trial before a jury resulted in a verdict for appellee for $1,500 and a motion for a new trial having been overruled, and judgment rendered on the verdict, the case is brought up by bill of exceptions to this court for review.

A number of grounds are relied upon for reversal, the chief of which is that it was negligence per se for appellee to have attempted to alight from the train while it was in motion and that appellant should not be held responsible for the injury resulting from an attempt to do so, and its motion for a peremptory instruction should have prevailed. The facts of this case are very similar to those in the case of Railroad Co. v. Eakins' Adm'r (Ky.) 47 S.W. 872; and the questions of law are, in the main, identical with those discussed in the opinion rendered in that case. It was there held that it could not be said, as a matter of law, that it would be, under all circumstances, an act of negligence for a passenger to attempt to alight from a moving train; that the question was ordinarily one of fact, to be determined by the jury from all the circumstances of the transaction. And while, as was said in the opinion in the Eakins Case, the question is not entirely free from difficulty, the decided weight of modern authority is that it is not contributory negligence, per se, for a passenger to voluntarily alight from a moving train, and that ordinarily it is a question for the jury to determine whether the passenger, under the circumstances, acted as a reasonably cautious and prudent man. This view is concurred in in Am. & Eng. Enc. Law (2d Ed.) 664; Pennsylvania Co. v. Marion, 123 Ind. 415, 23 N.E. 973, 7 L.R.A. 687; Railroad...