L. & N. R. R. Co. v. Dyer

• Decision Date: 14 February 1913
• Citation: 152 Ky. 264
• Court: Kentucky Court of Appeals
• Parties: L. & N. R. R. Co. v. Dyer

152 Ky. 264

L. & N. R. R. Co. v. Dyer

Court of Appeals of Kentucky.

Decided February 14, 1913.

Appeal from Knox Circuit Court.

B. D. WARFIELD, and BLACK, GOLDEN & OWENS, for appellant.

J. M. ROBSION, for appellee.

OPINION OF THE COURT BY WILLIAM ROGERS CLAY, COMMISSIONER — Reversing.

Claiming that in attempting to board one of defendant's trains she sprained her arm, plaintiff, Ellen Dyer, brought this action against the Louisville & Nashville Railroad Company to recover damages. The jury returned a verdict in her favor for $350. Judgment was entered accordingly, and the railroad company appeals.

Plaintiff predicated her right of action on two grounds: (1) The failure of the brakeman to assist her on the train; (2) the steps of the car were unreasonably high, and by reason of this fact defendant failed to furnish her a reasonably safe place to board the train. Defendant first moved to strike out all the allegations of the petition with reference to the failure of the brakeman to assist plaintiff. This motion was sustained by the judge then presiding. Subsequently that judge was succeeded by another judge, and plaintiff was permitted to file an amended petition pleading in substance that under the rules of the company the brakeman was required to assist ladies on the train, and that on the occasion in question he failed to do so. The case was submitted to the jury on both issues. The defendant contends that the court improperly submitted to the jury the question whether or not the brakeman failed to assist plaintiff. The determination of this question requires a brief summary of the evidence.

According to the evidence for plaintiff, she, on the occasion in question, went to Rossland, a station on defendant's road, to board one of its trains. She had her baby in her arms. She was also accompanied by her husband and little girl, her brother-in-law, Gilbert Jackson, and his wife. There was no ticket office, and she was unable to purchase a ticket. The train stopped, and the brakeman got on the ground and placed the little girl on the first step of the smoker. She proceeded up the steps and was followed by her father. Plaintiff's husband offered to take the baby, but she preferred that he take care of the little girl, and kept the baby in her arms. The brakeman was standing nearby when plaintiff attempted to board the train. Her brother-in-law, who was standing near her, attempted to help her up the steps but she pulled up by herself. The train stopped but a short time. At the place where she got on, the ground was rolling, and the lower step was two feet above the ground. On account of the character of the ground it was impossible to stand close to the step, and she had to stand about a foot away. This made it necessary for her to step about three feet in order to reach the lower step of the car. Her brother-in-law fixed the distance at from two and a half to three feet. When plaintiff attempted to make the step she carried her baby on her left arm. She got hold of the railing with her right arm, and in pulling up strained the tendons of her right arm. She claims that she suffered severely from the strain, and was unable to do any work for about four and a half months. Her physician, who was called in some time later, says that he found her suffering from the strain. Her arm was tender to the touch, and through lack of use was smaller than the other one. Her injury made her arm more susceptible to injury in the future. Plaintiff was permitted over the objection of defendant to prove that the defendant had in force at the time of the accident the following rule: "Conductors and brakemen must assist ladies, children and infirm persons with luggage on and off trains."

According to the evidence for defendant, as given by a number of witnesses not in its employ, the company had provided what is called a cinder platform at Rossland, which extended along the track for a distance of about a hundred feet and was eight or nine feet wide. The cinders practically covered the ties, though here and there there may have been a tie that was not altogether covered. The cinders came up to the ball of the rail and the steps were about 18 inches above the cinder platform. This is the regulation distance. The conductor and brakeman had no recollection of plaintiff's being injured. No...