Louisville, H. & St. L. Ry. Co. v. Stillwell

• Decision Date: 17 February 1911
• Citation: 142 Ky. 330,134 S.W. 202
• Parties: LOUISVILLE, H. & ST. L. RY. CO. v. STILLWELL.
• Court: Kentucky Court of Appeals

134 S.W. 202

142 Ky. 330

LOUISVILLE, H. & ST. L. RY. CO. v. STILLWELL.

Court of Appeals of Kentucky.

February 17, 1911

Appeal from Circuit Court, Breckenridge County.

Action by John W. Stillwell against the Louisville, Henderson & St. Louis Railway Company. From a judgment for plaintiff defendant appeals. Reversed and remanded for new trial.

R. A Miller and J. R. Skillman, for appellant.

Claude Mercer, for appellee.

CLAY C.

Appellee John W. Stillwell, brought this action against appellant Louisville, Henderson & St. Louis Railway Company to recover damages for injuries alleged to have been due to appellant's negligence. The jury returned a verdict in his favor for $700, and from the judgment based thereon the railroad company appeals.

On November 30, 1909, appellee purchased a ticket from Hardinsburg, Ky. entitling him to transportation over appellant's line of railway, to a station called Kirk. At about 7:30 p. m. appellee boarded appellant's train. The train was due at Kirk a few minutes before 8 o'clock. Appellee testifies that, upon the approach of the train to Kirk, the usual station signal was sounded by "whistle and an employé came into the coach where appellee was seated, and cried, "All out for Kirk!" The train then began to slow up preparatory to coming to a stop at Kirk. Appellee arose from his seat, walked to the door of the coach, passed out upon the platform, and took a position upon the steps of the car. While holding to the railing and when within a few feet of the usual stopping place, he claims the engineer in charge of the train violently turned on the air with such force that it precipitated him headlong to the ground. He struck on his left shoulder and side, and received injuries which he claims are permanent. Mr. Jarboe corroborates appellee's statement in regard to the suddenness and force with which the air was applied to the brakes.

The only ground urged for reversal is the failure of the trial court properly to instruct the jury.

Instruction No. 1, given by the court, is as follows: "The court instructs the jury that the plaintiff, John W. Stillwell, is admitted by the defendant to have been a passenger for compensation paid said defendant on the train upon which the said alleged accident occurred; and further instructs it was the duty of the defendant to exercise the greatest degree of care and foresight for his safe arrival at Kirk, Ky. as compared with and limited by that care and diligence of a prudent man engaged in that business, and defendant is responsible to plaintiff in damages for any injury sustained by him, if any, while aboard the defendant's train on the steps or platform of the coach in which he was riding preparatory to alighting therefrom when the train should stop at said station, and if the jury shall believe from the evidence that plaintiff went upon the platform or steps of said coach after the signal sounded by whistle for said station had been announced by the defendant's employés, and he was thrown therefrom to the ground by the violent jerking or bumping of said train, if there was any, by the operation of its movements which arose from the neglect upon the part of said operation, and was thus injured, the jury shall find for him in damages such sum as is warranted by the evidence not to exceed the sum of $10,000, the amount claimed in the petition." It will be observed that in the above instruction the court told the jury that the defendant was responsible to plaintiff in damages for any injuries sustained by him while aboard defendant's train on the steps or platform of the coach in which he was riding preparatory to alighting therefrom when the train should stop at said station. It may be that the court meant to convey the idea that defendant was responsible only in the event it was guilty of negligence; but there is not qualification attached to the language used. Having told the jury in unequivocal language that defendant was responsible for any injuries sustained by plaintiff, the jury had the right, under the language employed, to find for plaintiff, and may have done so in spite of the issues submitted by the other instructions. A statement like the one employed has no place in an instruction, and the court in making use of the same erred to the prejudice of appellant's substantial rights.

Instruction No. 4 is as follows: "The court instructs the jury that the plaintiff had the right while the train was...