Louisville & N.R. Co. v. McEwan

• Decision Date: 31 May 1895
• Parties: LOUISVILLE & N. R. CO. v. McEWAN.
• Court: Kentucky Court of Appeals

31 S.W. 465

LOUISVILLE & N. R. CO. v. McEWAN.

Court of Appeals of Kentucky.

May 31, 1895

Appeal from court of common pleas, Franklin county.

"Not to be officially reported."

Action by Christine McEwan against the Louisville & Nashville Railroad Company. There was a judgment for plaintiff, and defendant appeals. Reversed.

John W Rodman, Wm. Lindsay, and H. W. Bruce, for appellant.

W. H Holt, Knott & Edelin, and J. W. Scott, for appellee.

GRACE J.

This is an appeal by the Louisville & Nashville Railroad Company from a judgment of the Franklin circuit court, rendered in November, 1891, in favor of plaintiff, Christine McEwan, for the sum of $18,000, in damages for injuries sustained by her at the hands of a passenger on appellant's railroad in October, 1891. The petition and amended petition charge that plaintiff being a passenger on said road at that time, having bought and paid for a round-trip ticket to Louisville and return to Frankfort, on an excursion train, on the return passage, on the night of October 21st, plaintiff being on said train, appellant suffered and permitted, willfully and negligently, two disorderly, desperate, and dangerous men who were drunk and boisterous, and armed with deadly weapons, to enter its train at Louisville, Ky. and to remain on same until it reached Lagrange, a distance of 25 miles, and, while on said train, to engage in improper, riotous, and disorderly conduct, and to insult, beat, and bruise their fellow passengers, and to shoot and wound plaintiff, asserting that the officer and employés of this railroad company had notice of the dangerous, drunken, and boisterous character and conduct of these persons, and of the passenger who finally shot and wounded her, a sufficient time before this injury to have expelled said person from its cars, but negligently failed and neglected to do so. The answer denied in detail these several allegations, as to the character of the men or their condition, or that it had notice of same, or that it had any good reason to apprehend injury to plaintiff by violence at the hands of either of said passengers; denied that it was guilty of any negligence, or that it had any right to eject said person from the train. While the evidence on these several issues presented was conflicting, and particularly so, and doubtful and uncertain as to whether this passenger who shot and wounded plaintiff had given any, or at least sufficient, evidence of his drunken or dangerous character as to lead the officer of that train to entertain any reasonable ground of apprehension of violence to the other passengers, yet, being conflicting, we do not know that we should interfere with the verdict of the jury, which necessarily implies the finding of the facts referred to in favor of plaintiff, and against the defendant.

The facts further show abundantly that some other negro passengers on that train were drunk and disorderly, and one other, at least, appeared armed with a knife and drunk; but this one the conductor disarmed, and put off the train, but finding him on again, put him off a second time, and threatened to kill him if he ventured on the car again; and we hear no more of this passenger, nor did he injure any person. The conductor likewise put off quite a number of other passengers, at East or South Louisville, who appeared to be disorderly. The train that night was crowded with passengers, both white and black, many standing up in the aisles of the cars. Some trouble coming up between the whites and blacks in the third car from the engine, the conductor restored order, seated the white people, and moved the negroes, who were standing up in the aisle, and of whom complaint was made, out of this car wherein the plaintiff was seated and riding, back into the fourth car, and locked the door. This was some half to three-fourths of an hour before the difficulty came up in which plaintiff was shot. The matters that led up to this shooting were that one McHotton, in the middle of the fourth car, becoming offended at some negro leaning on his seat (and it is uncertain whether it was the negro Watson, who shot plaintiff, or not), commenced an attack, first on that negro, and then on two or three...