Illinois Cent. R. Co. v. Edelen

• Decision Date: 27 May 1913
• Citation: 156 S.W. 1029,154 Ky. 78
• Parties: ILLINOIS CENT. R. CO. v. EDELEN.
• Court: Kentucky Court of Appeals

156 S.W. 1029

154 Ky. 78

ILLINOIS CENT. R. CO. v. EDELEN.

Court of Appeals of Kentucky.

May 27, 1913

Appeal from Circuit Court, Jefferson County, Common Pleas Branch First Division.

Action by Allen S. Edelen against the Illinois Central Railroad Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Trabue Doolan & Cox, of Louisville, C. L. Sivley, of Chicago, Ill and R. T. Caldwell, of Louisville, for appellant.

Edwards Ogden & Peak, of Louisville, for appellee.

CLAY C.

Plaintiff below, Allen S. Edelen, is a breeder of saddle and show horses, which he frequently exhibited at the various fairs throughout the state of Kentucky and other states. In September, 1907, he shipped several horses to Paducah to be exhibited at the Paducah Horse Show. His horses were in charge of I. C. James. In reshipping the horses from Paducah to Louisville one of them was injured, and plaintiff brought this action against the Illinois Central Railroad Company to recover damages, basing his claim on the fact that the defendant failed to furnish reasonably safe facilities for loading. From a verdict and judgment in favor of the plaintiff in the sum of $1,400, the railroad company appeals.

The railroad company maintains in Paducah a freight depot about 450 feet long and 70 feet wide. There is a platform on either side and at one end. The car in which plaintiff's stock was being loaded was stationed near the west end, while the approach to the platform was on the east; and to reach the car the horses had to walk down the platform the full length of the depot, and then across the end of the depot, a distance of 70 feet, making a total distance of about 518 feet. It was near midnight when the loading of plaintiff's horses was undertaken. There were no banisters along the platform, which is only about four feet wide, and, although freight cars usually stood on the track parallel to the platform, yet for some distance from the east end of the platform there were no cars there on the occasion in question.

According to the evidence of plaintiff, there were overhead lights along the platform, and while the mare in question was being led along the platform she became frightened and fell off and was badly injured. Mr. James, who had charge of plaintiff's horses, engaged a car and paid the freight on the afternoon of the day the horses were shipped. He advised defendant's agents that the horses would not be loaded until after they had been exhibited that evening. Plaintiff's agents say that they objected to the stock being loaded at the freight depot, but were told by a representative of the railroad company that they would have to load at that place. The mare that was injured was three years old and standard bred. She was shown many times and was never defeated in the show ring. Several witnesses testified that she was reasonably worth on the market, when uninjured, the sum of $2,500.

According to the evidence for defendant, Mr. James himself requested that the car be placed at the freight depot. The agent told him that they had no facilities for loading horses at the freight house, and there was nobody there after 6 o'clock who could help him. Mr. James said that he wanted to load the horses at the freight depot for the reason that he did not want to load the horses until after the close of the horse show that night. The agent told him that they would rather place the car at the stockyards, where all live stock was loaded. Mr. James said, "Well, I unloaded my horses at the freight house, and I would like to load them out from there." On that account the agent arranged to have the car put at the freight house. The car was placed, and Mr. James examined it and said it was all right. Mr. James asked for the bill of lading, but he told Mr. James he could not deliver the bill of lading until the stock was received by the company. Another agent testified that Mr. James told him that he had arranged to have the car placed at the freight platform. Stock being shipped out of Paducah were usually loaded in the stock chutes.

It is first insisted that the trial court erred in giving instruction No. 1, which is as follows: "If you believe from the evidence that the plaintiff or his agents ordered and directed the defendant to place one of its cars at the freight house instead of at the company's regular place for the loading of live stock, and then and there agreed with the defendant to take charge of the loading at the freight house, the plaintiff thereby adopted the means at hand at the freight house for loading the stock mentioned in the petition from the ground into the car, and the only duty which the law imposed upon the defendant was to exercise ordinary care in so placing its car at the freight house platform as to afford the plaintiff an opportunity to load his stock into the car with reasonable safety; and if you shall believe...