Kentucky Cent. R. Co. v. Dills

• Decision Date: 18 February 1868
• Citation: 67 Ky. 593
• Parties: Kentucky Central Railroad Co. v. Dills.
• Court: Kentucky Court of Appeals

67 Ky. 593

Kentucky Central Railroad Co. v. Dills.

Court of Appeals of Kentucky.

February 18, 1868

1. In an action against a Railroad Company, for damages, for injuries sustained by a passenger, there being no proof of gross negligence or wanton recklessness, the assessment ought to be compensatory or indemnifying only, and not for smart money.

2. If the damage resulted to the passenger solely from the negligence of the Railroad Company's agents, it is liable for compensatory damages; or,

If it resulted solely from the negligence or temerity of the passenger himself, he is entitled to nothing; or,

3. If it was a compound result of negligence on both sides, then as the passenger's own fault was contributory to it, he can recover nothing, unless the managing agents saw his perilous condition, and might, by ordinary diligence, have prevented the injury.

APPEAL FROM PENDLETON CIRCUIT COURT.

STEVENSON & MYERS, For Appellant,

CITED--

15 Ills., 468; Galena and Chicago R. R. vs Yarwood.

2 Redfield on Railways, 204, 3 d ed., 234-5 61 st ed.

23 Penn. St . R., 147; Railway Co. vs Aspell.

9 Louis. Ann R., 441; Dumont vs. N. O. and C. Railroad Company.

6 Gray (Mass. ), 64; Lucas vs. Taunton and New Bedford Railway.

56 Penn., 294; Railroad Company vs. McClurg.

Sedgwick on Damage, pp. 26, 27, 28, 33, 34, 3 d ed.

2 Duvall, 556; Lou. and Port. Railway vs. Smith.

3 Bush, 587; Parker vs. Jenkins.

A. H. WARD, LEE & MARSHALL, and IRELAND & DUNCAN, For Appellee,

CITED--

Redfield on Railways, 2 d ed., pp. 323 to 330.

2 Duvall, 114; Louisville and Nashville Railroad Co. vs. Collins.

OPINION

ROBERTSON JUDGE.

The appellee, a citizen of Pendleton county, about sixty-five years old, took passage on the appellant's train of passenger cars, from Cynthiana to Livingood station, near his residence. Before reaching the station, the speed of the train was reduced to a slow pace until the front car reached the platform, when the appellee, who was in the middle car, got out, and, standing on the lower step of the car and holding to the iron railing, he either fell or was thrown off and hurt by a cut about four inches long on the front scalp of his head, and also by sudden concussion, of which he soon recovered, without any other serious damage to his person or in loss of time.

This action was brought by the appellee to recover damages for that alleged injury, charged as resulting from the negligence of the appellant's operating agents; and the jury, on a full issue, assessed his damages at two thousand dollars, for which the court, overruling a motion for a new trial, rendered judgment.

We may assume, from the evidence, that, while the appellee was on the step of the car, the brakesman, to force the car up to the platform of about one hundred and thirty feet length, raised the break, and thereby caused a jerk in the motion of the car; but whether that sudden motion threw the appellee off, or whether he prematurely stepped off before the car ceased to move, or whether it was there stopped at all, cannot be certainly determined from the testimony, in which there is some contrariety in respect to each of these questions. But there can be no rational doubt that, whether the train was entirely stopped or not, the conductor stepped on the platform, and a passenger got from it into one of the cars.

Nor does it appear, with judicial certainty, whether the raising of the brake was necessary or prudent, or was unskillful or negligent. It was the peculiar province of the jury to weigh the conflicting testimony, and decide on all the facts. But however the jury may have been allowed to decide them, they...