Illinois Cent. R. Co. v. Winslow

• Decision Date: 21 February 1905
• Citation: 84 S.W. 1175,119 Ky. 877
• Parties: ILLINOIS CENT. R. CO. v. WINSLOW.
• Court: Kentucky Court of Appeals

84 S.W. 1175

119 Ky. 877

ILLINOIS CENT. R. CO. v. WINSLOW.

Court of Appeals of Kentucky.

February 21, 1905

Appeal from Circuit Court, Graves County.

"To be officially reported."

Action by Luther Winslow against the Illinois Central Railroad Company. Judgment for plaintiff, and defendant appeals. Reversed.

Robbins & Thomas, J. H. Dickinson, Pirtle & Trabue, and 0. L. Price for appellant.

W. J Webb and B. Gardner, for appellee.

SETTLE J.

Appellee by verdict of a jury and judgment of the court below recovered of appellant $200 in damages. It appears from the statements of the petition that appellee, while a passenger in a caboose of one of appellant's freight trains, traveling from Wingo to Mayfield, Ky. upon a first-class ticket, which he had purchased before taking the train, was insulted and threatened with violence by appellant's brakeman who was charged with the duty of seeing to the comfort and safety of appellee and other passengers on the train; that the alleged insulting, offensive, and threatening language of the brakeman was addressed to appellee because he had accidentally expectorated upon the stove of the caboose; that all that was said and done by the brakeman was in the hearing and presence of other passengers in the caboose, and appellee was, by reason of the wrongful acts and misconduct of the brakeman, subjected to great humiliation of feeling and mental suffering, as well as bodily fear. The answer contained a traverse of the material statements of the petition, and pleaded the alleged misconduct of appellee in expectorating upon the stove, which it was averred he persisted in doing after being requested by the brakeman to desist; that such use of the stove by appellee made a bad odor, and was offensive to the other passengers, and, when politely requested by the brakeman, as it was his duty to do, to stop expectorating upon the stove, appellee became angry, and created the only disturbance that occurred in the car.

Two grounds for a reversal are presented by appellant's counsel, viz.: The admission by the lower court of incompetent evidence in the trial, and the refusal of that court to give the jury a peremptory instruction to find for the appellant when appellee's testimony was concluded.

A careful examination of the bill of evidence convinces us that the court did right in refusing the peremptory instruction, as the evidence introduced by appellee was sufficient, standing alone, to authorize a verdict for some amount in his behalf. Upon the other hand, that of appellant strongly tended to show that the altercation that occurred between appellee and the brakeman was caused mainly by the misconduct of appellee. In other words, the testimony of appellee himself was to the effect: That he expectorated upon the stove one time by accident. That, upon being reproved by the brakeman, Hamlet, therefor, he told him it was accidental, but, instead of accepting his excuse, the latter said to him, in an insulting and domineering manner: "What did you want to spit on that stove for? Was it to hear it fry? You better go home and spit on your grandmamma's bed, and see what she would do." That Hamlet continued to talk to appellee in an angry and insulting manner, and appellee said to him, "I understand what you mean, and I think you have said enough about it." Whereupon Hamlet turned to the conductor, who had just entered the caboose, and asked him if appellee was a passenger, and, upon being told that he was, he said, again turning to appellee, "If you wasn't, damn you! I would knock your lungs out." Upon being told by appellee, "No, he wouldn't, either," he said, "Yes, I would," and started towards appellee, who, according to his further statements, said no more, as he was afraid Hamlet would strike him. Two of the passengers--a man and a woman--corroborated appellee in large measure, though they did not hear all that was said by either appellee or the brakeman. Their testimony, however, went to show that the brakeman's language was rough, and his conduct aggressive, and both heard him say, if appellee were not a passenger, he would slap a lung out of him. For the appellant three witnesses were introduced--Hamlet, the brakeman; Parker, the conductor; and Saxon. Hamlet's testimony was, in substance, as follows: "It was a very cold evening, and we were coming this way on 192-- the local freight, coming north; and this gentleman was sitting there spitting on the stove, and I asked him to stop it. There were some old ladies in the car, and one in particular was coughing right smart, and it seemed to me it was offensive to her. It was offensive to me, and I use tobacco myself; and I remarked to him, 'If you was to spit on your mother's stove, she would take a stick of stove wood and blame you up by the side of the head with it;' and he seemed to get highly insulted, and he says, 'You have said enough; don't speak to me any more;' and spoke very loud, and I asked the conductor if he was a passenger, and he says, 'Yes;' and I says, 'It is a very good thing he is; I would slap a lung out of him."' The conductor corroborated Hamlet in full, but Saxon's statements were more corroborative of appellee's testimony than of Hamlet's.

It is evident from Hamlet's testimony that he was angry, and his manner aggressive, on the occasion in question; and, if the jury placed full credit in the testimony of appellee and his witnesses, they, no doubt, came to the conclusion that Hamlet was insulting, and his manner threatening, not to say violent. At any rate, it was the province of the jury to determine whether his conduct was such as to justify a verdict for damages against appellant, whose servant he was. With reference to the duty of a common carrier towards...