Illinois Cent. R. Co. v. Gunterman

• Decision Date: 23 November 1909
• Citation: 135 Ky. 438,122 S.W. 514
• Parties: ILLINOIS CENT R. CO. v. GUNTERMAN.
• Court: Kentucky Court of Appeals

122 S.W. 514

135 Ky. 438

ILLINOIS CENT R. CO. v. GUNTERMAN.

Court of Appeals of Kentucky.

November 23, 1909

Appeal from Circuit Court, Muhlenberg County.

"To be officially reported."

Action by G. W. Gunterman against the Illinois Central Railroad Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Trabue Doolan & Cox, R. Y. Thomas, Jr., Taylor & Eaves, and Blewett Lee, for appellant.

Willis & Meredith, for appellee.

HOBSON J.

G. W Gunterman was a passenger on the accommodation train of the Illinois Central Railroad Company running from Central City westward. The train was much crowded, and Gunterman rode upon the platform of one of the cars, as his destination was a station known as Mercer, about three miles from Central City. The proof for him tends to show these facts: After the train pulled out from Central City, a crash was heard in the smoking car, and there was some disturbance in there. The conductor went forward hurriedly to the car, and soon he and the flagman came out bringing with them a man named Jackson whom the conductor said he was going to put off; but he then decided not to put him off, but to take him on to Greenville, and allowed him to go back into the car. After Jackson returned to the car, there was still a disturbance in there. When the train reached Mercer, Gunterman got off and was standing on the platform, while the flagman was helping a lady off. At this juncture a man named Laswell, who had gotten off the train, picked up a rock and knocked down the porter, who was by the side of the car, and struck Langley, the flagman. The proof for the plaintiff shows that at this point the conductor and Langley took out their pistols and Langley began shooting; one of the balls from Langley's pistol striking Gunterman in the back of the neck.

The proof for the railroad company is to the effect that, when the conductor went forward into the smoker, he found that Jackson and Laswell had kicked down the door to the water-closet, claiming that some one had locked them in there, although the fact was that they simply had failed to turn the lock the right way. The conductor undertook to quiet them, and, Jackson being unruly, the conductor struck him. He thereupon quieted and took a seat; and the conductor left the car and went back to the ladies' car to take up his fares. After the conductor left, Laswell, who was with Jackson in the water-closet, became boisterous again, and the flagman, who was in the car, undertook to quiet him, and struck him on the head, from which he bled considerably. He then became quiet and soon the train pulled into Mercer, where Jackson, Laswell, and a man named Hopkins, among others, left the train. As soon as Laswell got on the ground, he began hunting for a rock, with which he knocked down the porter who had his back to him, and then struck Langley, the flagman, and Langley drew his pistol and snapped it. At this juncture Hopkins drew his pistol and fired two shots at Langley, the first of which struck Gunterman in the neck. The conductor was standing on the platform of the car, but had not gotten off the car when the difficulty took place. There was testimony for the plaintiff to the effect that Hopkins had drawn his pistol in the car before he reached Mercer; but there was no proof that any of the railroad men saw this, or that he was in any way connected with the difficulty that had taken place in the car. The proof for the railroad company was to the effect that Hopkins had done nothing until after the difficulty began on the ground. On this conflicting testimony the circuit court instructed the jury as follows:

"(1) The court instructs the jury that if they believe from the evidence that the plaintiff was a passenger on the defendant's (railroad company's) train from Central City to Mercer station, and that when the plaintiff was on the station platform at Mercer Station on the occasion of his leaving the cars after he had been carried from Central City to Mercer Station, and before he had had a reasonable opportunity to leave said station platform after getting off the cars, the agents of defendant railway company, or any of them in charge of said passenger train, while attempting to shoot another person, unintentionally but negligently shot and wounded the plaintiff upon his body and person with a pistol, then, and in that event, the jury should find for the plaintiff such compensatory damages, if any, as were thereby caused to the plaintiff,

...