Louisville & N.R. Co. v. Bell

• Decision Date: 02 December 1896
• Citation: 38 S.W. 3,100 Ky. 203
• Parties: LOUISVILLE & N. R. CO. v. BELL.
• Court: Kentucky Court of Appeals

38 S.W. 3

100 Ky. 203

LOUISVILLE & N. R. CO. v. BELL.

Court of Appeals of Kentucky.

December 2, 1896

Appeal from circuit court, Hart county.

"To be officially reported."

Action by Joshua Bell against the Louisville & Nashville Railroad Company for personal injuries. From a judgment in favor of plaintiff, defendant appeals. Reversed.

J Mitchell, H. W. Bruce, and Wm. Lindsey, for appellant.

S. M Payton, for appellee.

LANDES J.

In October, 1894, the appellee shipped over the road of the appellant company a car load of stock from Horse Cave, in Hart county, to Louisville. By the stipulations of the contract of transportation the appellee undertook to load and unload the animals at his own risk, and feed, water, and attend to them at his own expense and risk, while they were in the stockyards of the company awaiting shipment, and while in the cars or at feeding or transfer points, or where they might be unloaded for any purpose. As a part of the contract the appellee was furnished transportation by the company for himself, to enable him to accompany his stock to the point of destination, without any charge therefor over what he paid for carrying his stock, and executed what was termed a "release," recited to be "in consideration of the free passage" granted him by the company, whereby he agreed that the company should not be liable to him "for injury or damage of any kind suffered by me, while in charge of said animals." The train of cars reached South Louisville about 1 o'clock a. m. of the day after the shipment, the appellee and other stockmen being carried in the caboose that was attached to the train. At that point the caboose was detached, and during necessary switching and transferring of the freight cars, several of them were run back to the caboose for the purpose of attaching it again but they struck the caboose with considerable force, and knocked it back, and the shock produced by the concussion caused the appellee, who was on his feet, to be thrown against the front end and door of the caboose, breaking the glass that was in the door, injuring and bruising him slightly about the shoulders, and causing a painful and serious cut on one of his wrists, which came in contact with the broken glass. To recover damages for his injuries from the appellant company this action was brought by the appellee. The ground upon which the claim for damages is based was alleged in the petition to be that, in switching the freight cars, the appellant company, its agents, servants, and employés, "did unlawfully, willfully, maliciously, negligently, and carelessly *** run a number of heavy-laden freight cars with great force and violence against" the caboose, by reason of which the appellee "was precipitated and thrown from his position against the door and door post," whereby the injuries were inflicted on the appellee. Issue was joined by traverse, and plea of release and of contributory negligence. The case was submitted to a jury, and the result was a verdict and judgment against the appellant company for $1,000 damages. A motion for a new trial was made and overruled, and the case is before us by appeal from that judgment. It is alleged, for appellant, as error, that the court permitted incompetent testimony to be introduced in behalf of the appellee-First, with reference to appellee's capacity to see; and, second, with reference to some trouble between the trainmen and the stockmen in the caboose before the train reached South Louisville.

1. In his testimony the appellee stated, in substance, that when the caboose was detached at South Louisville, and while the cars were being switched, one of the stockmen went out of the caboose to look after his stock, and that he and the other stockmen started to follow him for the same purpose, but when they got to the door they concluded not to get off and turned back. In giving his reasons for not getting off, he stated that "he did not see very well," and it was dark and he did not feel safe in going out. Objection was made to his statement that "he did not see very well," but the objection was overruled. We are not able to see that this statement was incompetent, or that it was either prejudicial in any degree to the appellant or beneficial to the appellee. In the connection in which the statement was made, it does not appear to have been intended to convey the impression to the jury that his vision was materially defective, except as it may have been incidentally affected by the darkness...