L. & N.R. Co. v. Whitaker

• Decision Date: 02 December 1927
• Citation: 222 Ky. 302
• Parties: Louisville & Nashville Railroad Company v. Whitaker.
• Court: United States State Supreme Court — District of Kentucky

222 Ky. 302

Louisville & Nashville Railroad Company v. Whitaker.

Court of Appeals of Kentucky.

Decided December 2, 1927.

1. Carriers. — In action for injuries to passenger alighting from moving train, demurrer to petition, not alleging that train was not traveling at such speed as to make it apparent to ordinarily prudent persons that it would be dangerous to alight therefrom, and that plaintiff believed he could alight in safety, held improperly overruled.

2. Carriers. — 61 year old man, injured in alighting from train picking up speed in passing flag station, to which he had purchased ticket not yet taken up by conductor, held contributorily negligent as matter of law.

3. Carriers. — In action for injuries to one alighting from moving train at flag station, to which he had purchased ticket not yet taken up by conductor, plaintiff should not have been allowed to testify as to purpose of his trip.

4. Carriers. — Carrier is under no obligation to announce arrival of train at flag station, call the name thereof, or stop its train there, in absence of notice that it has passengers for that station.

5. Carriers. — Carrier's sale of ticket to flag station, at which purchaser was injured in alighting from moving train before ticket was taken up, held not notice that he was going to take that particular train.

6. Carriers. — In action for injuries to passenger alighting from moving train at flag station, his testimony that he did not know that such station was a flag stop was inadmissible, such knowledge being immaterial.

7. Carriers. — That many of defendant's trains stop at certain flag stations was immaterial in passenger's action for injuries in alighting from moving train thereat.

8. Carriers. — Injured passenger, not alleging in his petition that it was safe for him to alight from moving train at flag station, could not testify that he thought he could alight in safety.

9. Pleading. — Issues must be made by the pleading, and proof without pleading is as unavailing as pleading without proof.

10. Carriers. — Proof that station, at which passenger alighted from moving train, was a flag station, held admissible in his action for injuries sustained; that being a question of fact, not of negligence.

Appeal from Perry Circuit Court.

WOODWARD, WARFIELD & HOBSON, ASHBY M. WARREN and MORGAN, EVERSOLE & BOWLING for appellant.

H.C. EVERSOLE for appellee.

OPINION OF THE COURT BY DRURY, COMMISSIONER.

Reversing.

The defendant, Louisville & Nashville Railroad Company, seeks to reverse a judgment for $5,000 recovered against it by plaintiff, William Whitaker, a man 61 years of age. On August 12, 1926, plaintiff's son purchased for him a ticket from Krypton to Dunraven, a distance of four miles or less. He got on the train with this ticket at Krypton, and took a seat in the ladies' coach. Dunraven is a flag station, and has no depot building. The plaintiff says that he does not know whether he saw the conductor or not when he got on the train. He said he saw some man, but did not know whether he was a conductor, flagman, or brakeman. He does not say that any of these men saw him or knew he got on the train. He saw no employee of the railroad company while he was on the train. His ticket was not taken up. When the train got to Dunraven, it did not stop, but merely slowed up to allow the mail to be thrown on the train. When the plaintiff saw the train was not going to stop, he went out, and, as he says, "went off the train." He fell on his hands and knees, and brought this suit for his resulting injuries.

The railroad company traversed his petition, and pleaded contributory negligence on his part. A demurrer to the petition was improperly overruled, as it failed to allege the speed of the train or that it was not traveling at such a rate of speed as to make it apparent to an ordinarily prudent person that it would be dangerous to then alight...