Illinois Cent. R. Co. v. Cotter

• Citation: 103 S.W. 279
• Parties: ILLINOIS CENT. R. CO. v. COTTER.
• Decision Date: 20 June 1907
• Court: Kentucky Court of Appeals

103 S.W. 279

ILLINOIS CENT. R. CO. v. COTTER.

Court of Appeals of Kentucky.

June 20, 1907

Action by S. R. Cotter against the Illinois Central Railroad Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Robbins & Thomas, Trabue, Doolan & Cox, J. M. Dickinson, and R. G Robbins, for appellant.

Lee &amp Hester, for appellee.

HOBSON J.

On September 2, 1905, Rev. S. R. Cotter was at Mayfield and desired to go to Princeton. He went to the station to take the morning train. The train pulled in just before he got there. A man, who had come to the train with him and was carrying his valise, took it in the train and set it down. Cotter's statement as to what then occurred is as follows: "I ran into the waiting room and asked the agent would I have time to get a ticket. He said 'Yes'. I went on and pulled out my book, a book something like this. I had to write the station to which I wanted a ticket. I wrote in that book 'Princeton' and signed my name and handed it back to him. He took the book, went back and made out my ticket, and handed it to me. At that time the train was moving off, and I ran out to catch the train. The colored car had got past, and I tried to reach the next one. I made an attempt to get on and grabbed those bars and made a jump. My feet missed the steps. That had me swinging. The flagman was standing in the door, and went in the car. After a little while he came back, and I asked him to stop the car. He reached up, pulled the cord, but the train was running faster, and he left and went away, went in the car. A little later he came back and a colored man, the porter, came with him, on the sleeper, and they came up and caught hold of my arm, and he held one and the porter held the other. They did not pull on me at all, just held me a while, and the colored man turned loose and went on in the car. Then he turned loose and told me to hold on, and he went in. A very short while. I told him I couldn't hold much longer. A short while after he left me my hold gave out, and I fell. Q. You say that you caught onto this car and were swinging there, and the flagman came out there and looked down at you? A. Yes, sir. Q. And you asked him to stop the train? A. I asked him to stop the train. Q. How fast was it running then? A. Pretty fast. Q. And he reached up and pulled the cord? A. Pulled the cord; yes, sir. Q. About how far had they gone then when he pulled the cord? A. A quarter of a mile, I reckon. Q. Pulled the cord, and they didn't stop then, and he went in the coach? A. Yes, sir. Q. And came back again? A. Yes, sir; came back with a colored man. They both caught my arm, one hold of one, and the other hold of the other. Finally the colored man turned loose and went back in the car. Q. And then the white man turned you loose? A. Yes, sir; and told me to hold on. Q. That was, you say, the flagman? A. Yes, sir. Q. After you fell you started to the train. Did anybody meet you? A. The flagman came running back and said to me--(Objected to.) By the Court: He may answer. (Exceptions.) A. The flagman said: 'I would have stopped that train, but the bell cord or the signal cord was out of fix, and I couldn't do it.

That is why I didn't stop it.' Q. That was right after the accident, you say? A. Yes, sir."

The man who came to the station with Cotter testified as follows: "I carried the telescopes and things on in the car, and set them down. About that time Elder Cotter was getting his ticket in the office. He got his ticket and started out, and the train had gone a right smart piece. He got to the train just as the first compartment of the sleeper or dining car, and the next step was the front end of the last coach. It was open, and the Pullman porter was standing in the door, and Cotter caught the train and it throwed him around, and jerked him around a little bit. The flagman was up on the back end of the sleeper, and he looked around and saw him, and went through the coach to where he was. That was the last I saw of him, except he was going off on to the train. When he got somewhere near the crossing there at the cemetery, he broke loose and fell, but before we got there he had gotten up and gone onto the train which backed, and he got on the train and went on."

A person on the train testified as follows: "Just as the train pulled out Elder Cotter caught hold of the Pullman sleeper. It ran on until it got down there. The train was in the curve, and after a while he got from my view and passed on through that cut, so I says to the conductor, who was standing between the baggage car and the Jim Crow, I says: 'Mr. Conductor, somebody must have got killed back there, a colored man was hanging on.' He reached up and pulled the cord, the signal lever, jerked it two or three times, and the train stopped."

The train ran about 800 yards before Cotter fell off, and about 250 yards after he fell off before it stopped. On this evidence the court refused to instruct the jury peremptorily to find for the defendant, and instructed them as follows "The court instructs the jury that if they believe from the evidence that plaintiff, S. R. Cotter, in attempting to board defendant's train on the occasion under inquiry, failed to get into a place of safety on said cars, and was hanging on to said cars with his hands in a dangerous position, and any of defendant's servants managing or operating said train knew, or were notified of plaintiff's dangerous position, in time to have stopped the train, or had it stopped, and avoid the accident and injury, but negligently failed to do so, and the train continued to run, and by reason thereof the plaintiff fell from same and was injured, if he was injured, they will find for plaintiff. The court instructs the jury that the plaintiff was guilty of negligence in attempting to board a moving train, and he cannot recover in this action unless the jury believe from the evidence the agents or employés of the defendant controlling and operating the train, after they discovered plaintiff's...