Louisville and Nashville Railroad Company v. Popp, by, &C.
| Decision Date | 23 October 1894 |
| Parties | Louisville and Nashville Railroad Company v. Popp, by, &c. |
| Court | Kentucky Court of Appeals |
BURTON VANCE, AUGUSTUS E. WILLSON AND WILLIAM W. THUM FOR APPELLEE.
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Appellee, an infant between five and six years old, brought this action by his father and next friend to recover damages for injury to his leg, necessitating amputation above the knee, which was caught between a passenger car in motion and what is called a bumper, placed at end of a railroad track in Louisville, owned by appellant.
The injury was done, according to a map filed, about five feet from Second street and one hundred and fifty-five from west end of the passenger depot building, which is about two hundred feet long by twenty wide, and situated north of Water, between First and Second streets. A passenger platform extends from First to Second street that, at its eastern end, is about thirty-five, and on each side of the depot building seven and one-half feet wide. To a line distant from west end of the building twenty-five feet the platform is also thirty-five feet wide, but from there to Second street only ten, the remaining space north of and between it and the track, at end of which is the bumper mentioned, being used for an open roadway that extends from Second street to the line referred to.
On the south as well as north side of the depot building is a railway track, at usual distance from edge of the platform, and used exclusively for passenger traffic. There are five other tracks farther north, likewise extending to Second street, or very near it, one of which, the most northern, runs directly into or through a freight depot building situated east of First street. The others intersect the two passenger tracks at unequal distances east of that street, and on them are put idle passenger cars, though neither one of those tracks is adapted or used for transportation of passengers.
The evidence shows that two cars had been placed and left stationary on that passenger track north of the depot building, the west end of one of them being near to the bumper. But precisely how long it had been done before appellee was hurt does not appear, though they were there when a Shelbyville train was backed to the depot building on that track, and remained there after it left. It, however, appears they were put there for the purpose of being attached to and forming part of an excursion train that left the station about four P. M. on a Sunday. And it was in the process of making up or completing that train by coupling to the two stationary cars four others backed on the track by a switch engine when appellee, at the time on the platform of that one nearest the bumper, received the injury complained of, and for which the jury returned a verdict in his favor for ten thousand dollars.
The ground relied on for reversal is error of the lower court in giving and refusing instructions.
The first of them given, which we will consider, is as follows: "If the jury shall believe from the evidence that the agents and employes of the defendant, or any of them, knew, or had cause to believe, that plaintiff or the children who were with him was on either of the two cars which were standing on defendant's track near Second street, and failed to exercise ordinary care to protect them from harm, when said cars were coupled with the train, and that by reason of the failure of said agents or employes to observe ordinary care, the plaintiff sustained the injury of which he complains, then the law is for the plaintiff, and the jury should so find."
It seems to us that instruction involves no more than the simple proposition, often approved by this court, that it is the duty of those operating a railway train to use reasonable effort to avoid injuring even a trespasser, when his peril is, or by diligent attention to and proper conduct of the business they are engaged at, might have been, discovered in time to prevent it. And such diligence and attention is especially imperative in a case like this. For though ordinarily a person of matured experience and capacity might remain on the platform of a car while being coupled to others, it would be extremely perilous for a child five or six years old to attempt doing it, or even to go near them. It is true the evidence does show that the engine and four cars were backed at the rate of only two miles per hour; but however slow may have been their movement, it was inevitable the two stationary cars would be jarred and pushed suddenly back, as did occur with the result of crushing appellee's leg.
The phrase, "had cause," used in the instruction, we think, could not have been understood by the jury as meaning other than reasonable grounds to believe, and was, therefore, not prejudicial to appellant. But it is contended there was no evidence tending to show those in charge of the train either knew or had cause to believe appellee was then on or near to either car.
It appears he, accompanied by three other boys about his age, except one who was nine years old, on their way, though not by the most direct route, home from some place east of First street, stopped on the platform at eastern end of the depot building, whence they were driven by the baggage-master. A passenger for the Shelbyville train, before leaving, also tried to induce them to go off, and another employe, probably engineer of that train, endeavored to frighten them away by threat to carry them to the country. But instead of leaving the premises they went to west end of the platform, and finally into the car, for the purpose of getting ice water, which was given to them by two men who, there is some reason to believe, though not satisfactorily shown, were employes of appellant. After getting the water, they loitered about the car, appellee remaining on the platform of it, until the engine and four cars attached were backed on the track in order to make the coupling. The proof is the bell was ringing as the train backed,...
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