L. & N. R. Co. v. McCoy

• Decision Date: 26 October 1917
• Citation: 177 Ky. 415
• Parties: Louisville & Nashville Railroad Company v. McCoy.
• Court: Kentucky Court of Appeals

177 Ky. 415

Louisville & Nashville Railroad Company v. McCoy.

Court of Appeals of Kentucky.

Decided October 26, 1917.

Appeal from Laurel Circuit Court.

BENJAMIN D. WARFIELD, GEORGE G. BROCK and H. J. JOHNSON for appellant.

J. M. ROBSION, G. T. RADER and L. P. THOMPSON for appellee.

OPINION OF THE COURT BY JUDGE HURT — Affirming.

The appellee, John McCoy, by his petition and amended petitions, substantially alleged, that by the invitation of the persons in charge of a train of appellant, he got upon the train to ride a short distance to where the train would make another stop, and that shortly after the train started from the point, at which he had gotten upon it, one of the servants of appellant undertook to require him to leave the train, while it was running at a high speed, and upon his failure to leave the train, the employe, who had directed him to leave it, wrongfully, wilfully and maliciously, with a hose from which could be ejected hot water, poured a stream of hot water upon him, thereby greatly scalding his back and limbs, and from the effects of which he was unable to do any kind of labor, from that time, until the time of the bringing of the suit, and that his power to earn money was permanently impaired; that he was a coal miner at the time he suffered the injury, and received a wage of two dollars and twenty-five cents per day, and that the time he lost before he was able to labor again was seventy-five days, and prayed for a recovery for one hundred and fifty-five dollars for the time lost by him, and other damages for the pain and suffering endured by him, and the permanent impairment of his power to earn money, in the future, in the sum of fifteen thousand dollars. The appellant, by its answer and amended answers, and by agreements of record, traversed all the allegations of the petition and its amendments, and in addition thereto affirmatively averred that the appellee was a trespasser upon its train, and that if he suffered any injuries, which it denied, they were caused by its servants in the performance of their duties, and without any knowledge, at the time, that the appellee was upon the train, and without any intention to do him harm; and the further averment, that if its "engineer squirted or threw hot water upon the appellee intentionally or maliciously," that it was done by him on his own account, and was an act not within the scope of his employment and not in the performance of any duty, which the appellant had employed him to do. The affirmative averments of the answer and amended answers were, by agreement of parties, taken as controverted upon the record.

Upon the issues thus made, a trial was had before the court and a jury, which resulted in a verdict and judgment in the sum of five hundred dollars in favor of the appellee.

The appellant filed grounds and entered a motion for a new trial, which was overruled, and it has appealed, and seeks a reversal of the judgment for the reasons hereinafter indicated.

The evidence offered for the appellee, if believed, proved, that while the train, which consisted of an engine and tender, one flat car loaded with steel rails, and a caboose, was standing at the station, one of the brakeman attached to the train told him, that the train would stop at a point a mile or a mile and one-half away, and that he could ride upon the train to that point; that when he got upon the train, he stood upon the flat car, and after the train had proceeded a short distance and was running at a speed of about thirty-five miles an hour, the engineer, while standing and looking directly at him, waived his hand toward him and directed him to get off of the train; that he was unable to do so, because of the speed of the train, when the engineer, taking a hose in his hand and standing upon the coal in the tender, ejected hot water upon him, and to escape it, he retreated toward the other end of the flat car and maneuvered from side to side upon the car, but that the engineer held the hose directly in his direction and continued to eject from it a stream of hot water; that when the train stopped, he got down from it and went to his home; that the pain produced by the hot water was very great, and that his back was, in a large degree, scalded from the waistband of his pantaloons up to his neck, and was covered with large blisters, caused by the scalding, which generated into sores, and that he was confined to his bed for two weeks, and was unable to work thereafter for several months; that he was receiving two dollars and twenty-five cents per day as a coal miner at the time he received the injury and thereby lost all of the time mentioned; that his strength and ability to labor was permanently impaired, in that the injury had affected his kidneys, which necessitated his urinating very frequently and a portion of the time within every twenty or thirty minutes. It was further shown by an examination, at the time of the trial, that several scars were still visible upon the appellee's back, as a result of the alleged scalding.

The evidence for appellant, if believed, proved that the train was not a passenger train, at any time, but was a freight train; that no one of the employes in charge of the train had given any permission to McCoy to get upon it or ride upon it; that the engineer, while McCoy was upon the train, made use of the hose, which is connected with the engine and the hot water system upon the train, for the purpose of wetting the coal in the tender and thereby to allay the dust from it; that at the time he used the hose, he did not see McCoy and did not know that he was upon the train or in a place where the water could have descended upon him, and that he had no intention or purpose of pouring the hot water upon him, but that a small portion of the water did pass over the coal in the tender and fall upon McCoy. The appellant, also, offered evidence, which tended to prove, that McCoy was not injured, and that he did not lose any time from work and was engaged in work immediately after the alleged injury. The proof for appellant, also, tended to prove that the engineer in charge of the train did not order or request McCoy to leave the train, and did not pay any attention to him, and made no effort of any character to remove him from the train.

At the conclusion of the evidence, the court gave to the jury four instructions, by the first of which the jury was advised, that if the engineer attempted to force McCoy to leave the train upon which he was riding, while the train was in motion and that for the purpose of making him leave the train, the "engineer intentionally threw, pumped or squirted hot water upon him," and thereby scalded and injured him, then the law was for the appellee and the jury should so find. In the event a finding should be for the appellee, the jury should award him such sum in damages, as, from the evidence, it might believe would reasonably and fairly compensate him for such injuries, including any mental or physical pain or suffering, which he was caused to endure, or which, from the evidence, it was reasonably certain he would thereafter endure, and which was caused directly and proximately by the injury, if any, and for any loss of time occasioned by the injury, if any, but not in excess of one hundred and fifty-five dollars, and for any permanent reduction of his power to earn money, if any; but if it should allow anything for loss of time and permanent impairment of power to earn money, the allowance for the impairment to earn money should begin when the allowance for the loss of time, if any, was made, should end, but in all not to exceed fifteen thousand dollars. The second instruction advised the jury that the appellee was a trespasser upon the appellant's train, at the time complained of in the petition, and that he was without right to be thereon, and that the servants of appellant in charge of the train did not owe him any duty, except not to intentionally injure him, and that they had a right to use such reasonable force as was necessary to require the appellant to leave the train without personal injury to him, and that before the jury was authorized to find for the appellee, it must believe from the evidence, that the "engineer intentionally threw, pumped or squirted hot water upon him, for the purpose of forcing him to leave the train," and that he was thereby injured, and that unless the jury so believed, the law was for the appellant and the jury should so find. The jury was further advised by this instruction that it was the duty of appellant's servants in charge of the train, in attempting to remove the appellee from it, if the engineer did so, to stop the train before he was ejected from it, or to reduce its speed so that he would incur no danger of injury in being ejected from it. By the third instruction the jury was advised, that if it believed that the appellant's engineer "intentionally" pumped or threw the hot water upon the...