L. & N. R. Co. v. Bowman

• Decision Date: 17 March 1925
• Citation: 208 Ky. 39
• Court: United States State Supreme Court — District of Kentucky
• Parties: Louisville & Nashville Railroad Company v. Bowman.

208 Ky. 39

Louisville & Nashville Railroad Company v. Bowman.

Court of Appeals of Kentucky.

Decided March 17, 1925.

1. Carriers — Trainmen Not Required to Assist Passengers Off and on Trains, Unless Infirmity Obvious, or Request Made Therefor. — Trainmen are under no legal duty to assist passengers off or on trains, even though sick or infirm, unless such infirmity is obvious, or a request for assistance is made.

2. Carriers — Trainmen Under no Duty to Aid Female Passenger Accompanied by Escort to whom She is Actually or Apparently Looking for Assistance. — Though car steps are unreasonably high, trainmen, unless requested to do so, are under no duty to aid female passenger, accompanied by escort to whom she is actually or apparently looking for assistance, to get on train.

3. Carriers — Brakeman Held Obligated to Help Female Passenger Mount Unreasonably High Step though She was Accompanied by an Escort. — Where female passenger's escort was not assisting her to get into car having steps 2 1/2 or 3 feet high, but was incumbered with baggage and had gone into car, it was duty of brakeman perceiving her need to help her without request.

4. Carriers — That Car Steps were Unreasonably High is Alone Negligence. — That car steps were so high as to be dangerous to person attempting to board train is alone negligence as to passenger injured while trying to board train.

5. Appeal and Error — Instruction Permitting Recovery for Permanent Injuries Not Prejudicial, where Recovery was no More than Reasonable Compensation for Temporary Injuries. — Instruction authorizing recovery for permanent injuries held not prejudicial, where damages recovered were no more than reasonable compensation for injuries without regard to permanency.

6. Carrieirs — Evidence Held to Sustain Recovery for Injuries while Boarding Car. — Evidence held to sustain recovery for injuries sustained by passenger from fall while boarding car.

7. New Trial — Lack of Motion to Set Aside Impaneling of Jury or to Continue Cause Held Waiver. — In passenger's action for injuries, where plaintiff's counsel, on objection to evidence of particular injuries because unpleaded, offered to and did subsequently file amended petition, which was not objected to, held lack of motion to set aside impaneling of jury, or to continue cause on account of surprise, amounted to waiver by defendant.

Appeal from Lee Circuit Court.

HUNT, NORTHCUTT & BUSH, ROSE & STAMPER and WOODWARD, WARFIELD & DAWSON for appellant.

J. MOTT McDANIEL for appellee.

OPINION OF THE COURT BY JUDGE McCANDLESS.

Affirming.

In boarding a passenger train at Willow Shoals, a regular station on the L. & N.R.R., Mrs. Hazel Bowman claims to have been injured. For this she sued and recovered a judgment of $1,500.00. The company appeals.

According to her evidence appellee had a purse and a package in her hand. She was accompanied by a young man who was carrying two buckets of milk, one in each hand; the train stopped with the entrance of the car at a point beyond the platform, and the lowest step was two and one-half or three feet from the ground. The young man mounted the steps of the smoker and entered that car. She laid the packages on the steps of the ladies' coach, took hold of the iron railing but was able to reach the steps with only the toe of her right foot. In this way she pulled herself up but as her other foot reached the steps she slipped and went down, scraping one shin as she fell and bruising her other limb. The brakeman was standing near and she turned to him and said that she did not believe that she could get up, but he smiled and made no effort to assist her. She then placed her knee on the bottom step, caught the railing with her hands, and in this way mounted the steps, went into the car, sat down and made no further mention of the matter at the time.

On her arrival at Heidelberg, six miles distant, she left the train and went to her home; that evening she suffered with pains in her abdomen and had to go to bed. After a week's confinement she suffered a miscarriage, passing a well-formed foetus. This was followed by another miscarriage some three days later in which she passed a decomposed foetus in a horrible state of decay.

The operators of the train deny any knowledge of...