Lexington & E. Ry. Co. v. Robinson

• Decision Date: 21 November 1919
• Citation: 216 S.W. 86,186 Ky. 739
• Parties: LEXINGTON & E. RY. CO. v. ROBINSON.
• Court: Kentucky Court of Appeals

216 S.W. 86

186 Ky. 739

LEXINGTON & E. RY. CO. v. ROBINSON.

Court of Appeals of Kentucky.

November 21, 1919

Appeal from Circuit Court, Breathitt County.

Action by Edna Robinson, by Ance Robinson, her next friend, against the Lexington & Eastern Railway Company. From judgment for plaintiff, defendant appeals. Reversed, with instructions to award defendant new trial.

O. H Pollard, of Jackson, Samuel M. Wilson, of Lexington, and Benjamin D. Warfield, of Louisville, for appellant.

J. M McDaniel, of Beattyville, Kelly Kash, of Irvine, and Hazelrigg & Hazelrigg and Hobson & Hobson, all of Frankfort for appellee.

QUIN J.

Edna Robinson, 10 years of age, in company with a girl cousin 16 years old, became a passenger on a train of the appellant company at Jackson, Ky.; her destination being Haddix, some 8 or 10 miles distant. Edna's father accompanied them to the train. One of the front seats in the ladies' coach having just been vacated, they were seated there; Edna being next to the window, which was open. Her companion's father (Edna's uncle) took a seat in the coach just opposite the girls, but later went into the smoking car. In passing through a tunnel on their way to Haddix, appellèe claims that a hot cinder came through the window and struck her in the eye.

After their tickets had been collected and the conductor was on his second trip through the train, and before reaching the tunnel, the girls testify they, in a loud voice, requested the conductor to close the window. This request was made when he was some two or three seats from them. They say he turned looked at them and towards the window, and continued collecting tickets. He did not lower the window, and the girls claim they were unable to do so. Appellee suffered greatly with her eye that night, and the succeeding day and night, and her pain was such that she returned to her home the second day and went with her father to see a physician, Dr. Hogg, who told them the eye was in such a condition he could do nothing for it, but recommended the application of some liniment. This gave some relief. Two or three days later, or about five days after the accident, appellee consulted Dr. Wilgus Back, and she says he removed a cinder from her eye. Though her eyes had been well and strong before the accident, she says she has been unable to read or to use her eyes since that day and was still suffering from them at the time of trial three years later.

There have been three trials of this case. A verdict of $250 was set aside by consent; a second trial resulted in a hung jury; and in the third, the one from which the present appeal is prosecuted, appellee was awarded damages in the sum of $5,000.

The evidence in behalf of appellee is anything but satisfactory, yet sufficient to take the case to the jury. However, the verdict is not only against the weight of the evidence, but the amount awarded is so excessive that for both reasons a reversal must be ordered.

Appellee introduced in her behalf Dr. W. P. Hogg, who testified that he met appellee and her father on the street, or in his office, he did not recall which, as it had been some two or three years previous; he did not recall anything much about it; to the best of his knowledge the girl's eye was swollen; he was uncertain whether he prescribed any treatment.

In answer to a hypothetical question, he states that the condition of the eye might be permanent.

Dr. Wilgus Back, introduced by appellant, says that appellee did not consult him with reference to an injury to her eye; that she had a stye on her eye, and he operated on it, which gave her relief. He says he did not take a cinder out of her eye, and there was no evidence of a cinder having been in her eye; he never saw her again from that day until he met her at the government hospital, where she was being treated for some eye trouble. This was a year or two after her visit to him. He testified to the same effect on each of the previous trials. At the time of the last trial he was the regular surgeon for the appellant, but at the time he attended appellee he was not so employed by the company.

Dr. T. F. Wickliffe, also introduced by the appellant, is an eye, ear, nose, and throat specialist in charge of the government hospital at Jackson; says he first saw the appellee March 27, 1914, just after the hospital had been opened. She came to the hospital to have her eyes examined. He made a thorough examination of her eyes and found she had catarrhal conjunctivitis in both eyes.

This is an inflammation of the conjuntiva, the serous lining of the lids and covering of part of the eyeball. This was her only ailment. There was no evidence of any inflammation produced by a cinder. She...