Lou. & Nash. R. R. Co. v. Ritter's Adm'R.
| Decision Date | 15 March 1887 |
| Citation | 85 Ky. 368 |
| Court | Kentucky Court of Appeals |
| Parties | Lou. & Nash. R. R. Co. v. Ritter's Adm'r. |
APPEAL FROM BARREN CIRCUIT COURT.
LEWIS McQUOWN FOR APPELLANT.
W. LINDSAY ON SAME SIDE.
W. P. D. BUSH AND F. F. BUSH FOR APPELLEE.
In May, 1876, the appellant's passenger train, while en route to Louisville, came in collision with a cow, which was on the railroad track. The collision threw one of the passenger coaches from the track. The appellee's intestate was in this coach as a passenger, having paid his fare from Glasgow to Louisville, and was injured by reason of the collision and throwing of the coach from the track.
The trial of appellee's action against the appellant for the injuries received by his intestate in the collision resulted in a verdict and judgment for fifteen hundred dollars in damages. Appellant has appealed from that judgment.
Railway passenger carriers, in legal contemplation, do not insure the absolute safety of their passengers, but they do bind themselves to exercise the utmost degree of human care, diligence and skill in order to carry their passengers safely.
It is meant by this rule: First, that the highest degree of practicable care and diligence should be exercised that is consistent with the mode of transportation adopted. Second, that competent skill should be possessed, which should be exercised in the highest degree. Tested by this rule, for the slightest neglect against which human prudence, diligence or skill can guard, and by which injuries occur to passengers, the carriers will be liable in damages.
This high degree of care, diligence and skill extends not only to the running of passenger trains with a view to the safety of passengers, but to providing against defects in the road, cars or machinery, or any other thing that can and ought to be done in order to carry passengers safely. Among these duties, is that of keeping the track clear of obstructions, and of removing timber and bushes along the track on the land of the company, so as to keep the engineer's view of the track in running the train unobstructed. A failure to do this, or any of the duties above mentioned, is negligence.
Where a passenger, being carried on a train, is injured by an accident occurring to the train, the legal presumption arises that the accident and consequent injury were caused by the negligence of the carriers. And the onus of disproving the presumption of negligence, by showing that the injury arose from an accident, which the utmost care, diligence and skill could not prevent, is on the carrier, or, in actions for ordinary neglect, that although negligent themselves, the injury to the passenger would not have occurred but for his own negligence. Of course, where death ensues to a passenger by the willful neglect of the carriers, they are not allowed to rely upon the contributory negligence of the passenger as a defense.
The foregoing views are sustained by the following authorities and leading cases: Redfield on Railways, vol. 2, page 229; Story on Bailments, section 601; Jameson v. San Jose and Santa Clara R. R. Co., 55 Cal., 597; Pittsburg, C. & St. L. R. R. Co. v. Thompson, 56 Ill., 142; Pennsylvania Co. v. Roy, 102 U. S., 456; Railroad Co. v. Varnell, 98 U. S., 480; Railroad Co. v. Pollard, 22 Wall., 341; Meier v. The Pennsylvania Railroad Co., 64 Pa. St., 226; Ohio and Memphis Packet Co. v. McCool, 8 American and English Railroad Cases, 394; New Orleans, Jackson and Great Northern Railroad Co. v. Allbritton, 38 Miss., 274; Baltimore and Ohio R. R. Co. v. Worthington, 21 Md., 284.
The three instructions given by the lower court on behalf of the appellee accord with the foregoing views of the law, except in this: The burden of proof was on the appellee to establish the accident and his...
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