Illinois Cent. R. Co. v. Glover

• Decision Date: 29 January 1903
• Parties: ILLINOIS CENT. R. CO. v. GLOVER.
• Court: Kentucky Court of Appeals

71 S.W. 630

ILLINOIS CENT. R. CO. v. GLOVER.

Court of Appeals of Kentucky.

January 29, 1903

Appeal from circuit court, Daviess county.

"Not to be officially reported."

Action by Wm. P. Glover against the Illinois Central Railroad Company. From a judgment for plaintiff, defendant appeals. Affirmed.

J. D Atchison, C. S. Walker, J. M. Dickinson, and Pirtle & Trabue for appellant.

Lawrence P. Tanner, for appellee.

HOBSON J.

Appellee Glover, took appellant's accommodation train at 6:30 on the morning of May 6, 1901, at Central City, to go to Leitchfield, and paid the conductor the fare. It was a slow train. There was a passenger train behind it, which made better time, and, finding that his train would not get into Leitchfield as soon as he wanted to get there, he asked the conductor if he would give him a ticket, or the money back he had paid, in order that he might get on the passenger train. The conductor told him to ride on with him, and, if that train overtook them, he would give him the money that he might get on the other train, but he believed the accommodation would beat the passenger to Leitchfield. When they got to Goff, appellee, learning that the passenger train was coming close behind, got out of the car, and went to where the conductor was, to see him about getting his transportation on the other train. Just as he got to the conductor, and named the matter to him, he signaled the engineer to go ahead, and said to appellee he did not have time to give him his transportation. As the train started, appellee asked him what he must do, and the conductor told him to get on the train. As he went to get on at the front end of the caboose, where the conductor had gotten on, the brakeman told him if he tried to get on to get on the rear end. He did this, and just as he went to get on the train it gave a sort of lunge, and he was jerked down, and rolled over on the ground, by reason of which his left knee was severely hurt. The conductor was standing on the back end, and hallooed to him to catch the next train, which he did, and at the next station the conductor gave him his grip, and also arranged with the conductor of that train for his transportation to Leitchfield. He was confined to bed eight or ten days, was on crutches five or six weeks, and was lame for about four months. On the trial the knee was exhibited to the jury, and they found a verdict for appellee in the sum of $500.

The testimony is conflicting as to what took place between him and the conductor, and also as to the speed of the train. The conductor says he told him not to get on the train, and that it was running at a rapid rate; while appellee says that the train was running about three miles an hour, and that he would have had no trouble in getting on but for the sudden lunge of the train. The proof for appellant showed there was no sudden jerk of the train, but only that it was running fast. Under instructions that seem to us substantially to have submitted the issue to the jury, the jury followed or took as true appellee's version of the transaction, and therefore the question in the case is, was he entitled to recover on the facts stated by him? The court told the jury that, if the speed of the train was such that persons of ordinary judgment should have perceived the danger of attempting to board it, they should find for the defendant although they believed from the evidence that the conductor told him to get on. He also told the jury that, although appellee did not perceive the danger himself, still if he was told by the conductor, or warned by others, and persisted in the attempt and so received his hurt, when, but for his own negligence, he would not have been hurt, they should find for the...