Illinois Cent. R. Co. v. Cruse

• Decision Date: 10 October 1906
• Citation: 96 S.W. 821,123 Ky. 463
• Parties: ILLINOIS CENT. R. CO. v. CRUSE.
• Court: Kentucky Court of Appeals

96 S.W. 821

123 Ky. 463

ILLINOIS CENT. R. CO. v. CRUSE.

Court of Appeals of Kentucky.

October 10, 1906

Appeal from Circuit Court, Larue County.

"To be officially reported."

Action by Elizabeth Cruse against the Illinois Central Railroad Company. Judgment for plaintiff, defendant appeals. Reversed and remanded.

L. B Handley, J. M. Dickinson, and Trabue, Doolan & Cox, for appellant.

Mather & Creal, for appellee.

BARKER J.

During the month of September, 1904, the appellee, Elizabeth Cruse took passage on one of appellant's trains running from Cecilia Junction to Louisville, Ky.; the latter place being reached about 8 o'clock p. m. on the day of the passage. She was accompanied by two small children, and had as baggage two valises. When the train reached the depot in Louisville the younger of the children was asleep, and when the mother undertook to alight from the car she carried the sleeping child, and one of the valises; the other child, who seems to have been old enough to perform that duty, carried the second valise. There were some 25 or 30 passengers in the coach appellee being among the last to leave. When on the steps of the car, her foot slipped, causing her to fall, and, as she claims, seriously injured herself by striking her back against the side of the car. To recover damages for this injury she instituted this action, basing her right to recover, first, upon the insufficient lighting of the platform of the coach in which she was riding; and, second, the failure of the employés of appellant to render her the necessary assistance, considering her condition, to enable her to alight with safety. There is no complaint that either the steps or the platform were not in an ordinarily safe condition; the basis of the complaint being the want of sufficient light, and the absence of the assistance from the employés before stated. Upon the trial the jury awarded appellee a judgment of $500 in damages.

The court, among others, gave the following instructions to the jury:

"No. 1. The court instructs the jury that it was the duty of the defendant's servants in charge of the train on which plaintiff was a passenger, to observe the utmost care, which a prudent man engaged in that business would exercise under like circumstances for the safety of plaintiff, while she was attempting to alight from the car; and if you believe from the evidence that at the time she attempted to alight from said train the steps and platform, or either, was insufficiently lighted for plaintiff to see clearly said steps or platform, and that defendant's agents in charge of said train failed to exercise such care for plaintiff's safety in alighting as would appear to a prudent man to be reasonably necessary under like circumstances, or if you believe from the evidence that plaintiff was in feeble health, and, by reason thereof, required aid to alight in safety, and that her feebleness was known to defendant's agents in charge of said train, or was apparent, and that said agents failed to exercise such care for plaintiff's safety as would appear to a prudent man engaged in like business to be reasonably necessary, and that by reason of said agent's failure, if any, to render such aid, plaintiff was injured, you should find for the plaintiff."

"No. 5 1/2. The court instructs the jury that if they believe from the evidence that the car steps from which plaintiff alighted, and the station platform upon which she alighted, were both sufficiently lighted at the time the plaintiff so attempted to alight, so that she could have seen clearly how to alight in safety, or unless the jury believe from the evidence that the plaintiff was in such feeble health as to require more than ordinary care and assistance from the defendant's agents and servants in charge of the train, and that said feebleness was known to the said agents and servants, or was apparent to them, then the law is for the defendant, and the jury should so find. And the court further instructs the jury, although they believe from the evidence that the car steps and station platform, or either, were insufficiently lighted, and that the plaintiff was in feeble health, and this was known to said agents and servants, or was apparent, they will find for the defendant, unless they believe from the evidence that the defendant's agents and servants in charge of the said train did not exercise such care for plaintiff's safety in alighting as would appear to a prudent man to be reasonably necessary under like circumstances."

The main question to be disposed of is the correct ascertainment of the duty of assistance a common carrier owes a passenger situated as was appellee at the end of her journey. The question, so far as we know, has never been adjudicated by this court, and we are thus forced to borrow what light we can from other authority.

In the case of the Missouri Pacific Railroad Company v. Wortham (Tex.) 10 S.W. 471, 3 L. R. A. 368, it was said: "It may be conceded that if appellants had had a proper platform at the station, upon which the passengers could have alighted, their duty as to this matter would have been discharged, and that they were not called upon to render personal assistance."

In Raben v. Central Iowa Railway Company (Iowa) 34 N.W. 621, the court, in criticising an instruction given upon the trial of the case, said: "The doctrine of this instruction is that it was the duty of defendant's employés to assist plaintiff to alight from the train, and if they negligently failed to perform that duty, and started the train, without looking and seeing that she had left, defendant is liable for the injury. This doctrine cannot be sustained. It is undoubtedly the duty of a railroad company to provide suitable and safe means for entering and alighting from its trains, but having done this, and having stopped its train in proper position to enable the passengers to avail themselves of these means in entering and alighting, it is not bound to render them personal assistance. The contract of the carrier is that he will carry the passenger safely and in a proper carriage, and afford him convenient and safe means of entering and alighting from the vehicle in which he carries him, but he does not contract to render him personal service or attention beyond that."

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