Louisville & N. R. Co. v. Ellis' Adm'x

• Decision Date: 25 April 1895
• Citation: 30 S.W. 979,97 Ky. 330
• Parties: LOUISVILLE & N. R. CO. v. ELLIS' Adm'x.
• Court: Kentucky Court of Appeals

30 S.W. 979

97 Ky. 330

LOUISVILLE & N. R. CO. v. ELLIS' Adm'x.

Court of Appeals of Kentucky.

April 25, 1895

Appeal from circuit court, Shelby county.

"To be officially reported."

Action by the administratrix of Stephen W. Ellis, deceased, against the Louisville & Nashville Railroad Company. From a judgment for plaintiff, defendant appeals. Reversed.

J. C Beckham & Son, for appellant.

P. J Foree, L. C. Willis, and J. A. Scott, for appellee.

PAYNTER J.

The administratrix of Stephen W. Ellis, deceased, brought this action against the Louisville & Nashville Railroad Company to recover damages, alleging that the decedent was a passenger on a train of the appellant, on his way from Lexington, Ky to Cropper; that the officers and agents of the appellant in charge of the train unlawfully, wrongfully, willfully, and negligently ejected the decedent from the train while he was physically and mentally incapable of taking care of himself, and placed him in an exposed and dangerous position, where he was shortly afterwards run over and killed by another train in charge of appellant's agents on the same line of railroad; that the deceased was lying unconscious on the track when so killed. The killing took place on the 2d day of September, 1892. The trial resulted in a verdict and judgment for appellee in the sum of $11,000.

The undisputed facts are that, on the morning of the day Ellis was killed, he obtained a round-trip ticket on the appellant's road from Cropper to Lexington, and that he got aboard of the train from which he was ejected, which left Lexington, going in the direction of Cropper. On the trial of the case much testimony was offered by both sides, some of which was of a very contradictory character. The appellee introduced a number of witnesses whose testimony tended to prove the following state of facts: That the deceased was in Lexington on the day he was killed, and had been drinking very heavily; that he was about the depot the evening before the train started, in a very intoxicated condition; that a friend who was with him endeavored to keep him from getting on the train from which he was ejected, telling him it was not the train upon which they should return, and, notwithstanding the effort to prevent him, the deceased got aboard the train, and left Lexington on it. One witness, speaking of deceased's condition just before he left Lexington, said: "He was very drunk. He seemed to be almost in a lifeless condition. He could walk about, but seemed to be not sensible at all." Another witness said: "I could see he was very drunk. They had hold of him, holding him up." Woodford Hughes was on the train from which Ellis was ejected, and, in speaking of his condition, said, "He was very drunk, staggering around, uttering curses sometimes, and getting up, falling around,-first against one man, and then against another." Other witnesses testified as to his drunken condition, but to whose testimony it is unnecessary to invite special attention. Vileys station is a short distance from Lexington. Witnesses testified that the deceased was not put off at that station, but that he was carried 400 or 500 yards beyond the station, and put off in a cut; that there was a ditch along the track. And the testimony tended to prove that there were considerable banks on either side of the track where he was put off, fences on either side, and no outlet at that point from the track. The testimony introduced by appellee conduced to prove that deceased was very drunk when put off, and was left standing near the track, stooped over, and acting in a way which indicated that he did not know what to do. It is in evidence that one passenger appealed to the conductor not to put deceased off in "that condition, but take him to a station." There was proof that the Chesapeake & Ohio express train, which uses the road of the appellant, was to soon follow the train upon which the deceased had taken passage. The testimony in the record shows that the train from which deceased was ejected left Lexington at 6:03 p. m. The express train just mentioned was due to leave Lexington at 6:35 o'clock, but left six or seven minutes late. The appellant introduced a number of witnesses tending to prove that the deceased was put off the train at Vileys station, on the opposite side of the road from the station; that the deceased was able to and did walk off the train himself; that he was not so drunk as to be incapable of taking care of himself. It introduced testimony tending to prove that the first blood was seen on the track at a point 2,920 feet from Vileys, in a cut, from which appearance it is argued that that is the point where the train struck the deceased. It is claimed for the appellee that the deceased, when ejected from the train, was physically and mentally incapable of taking care of himself, and that he was put off in a cut some distance from a station,-an unsafe place; that the officer and agents knew his condition when they ejected him; that the deceased was quiet, and not disturbing the passengers, and that a passenger offered to pay his fare before he was put off; that the deceased was killed by a train which followed in a few minutes the one from which deceased was ejected, and that the officers and agents of appellant knew this fact when they ejected the deceased; that deceased was killed by this train. For the appellant it is claimed that the deceased was put off at one of its stations for his failure to produce a ticket or pay his fare on the demand of the conductor; that the deceased was not so drunk as to be physically or mentally incapable of taking care of himself; that when he was ejected he was placed at a reasonably safe distance from passing trains; and that the appellant is not liable in damages for killing the deceased, as it is not responsible for deceased's coming on the track, and the proof showing that the officer and agents in charge of the train that killed Ellis did not prevent, and could not have prevented, the killing by the exercise of reasonable care after discovering him on the track. There is no evidence in the record tending to show that the officers or agents in charge of the train which is believed to have killed Ellis were guilty of any negligence whatever. If appellee is entitled to recover, from the facts developed in this record, it must be on account of the conduct of the officers or agents of the train from which deceased was ejected.

A number of instructions were offered by counsel for appellant and appellee, all of which were refused by the court. The court then gave the jury three instructions, the effect of which was that the jury could not find for the appellee unless the jury believed from the evidence that, at the time deceased was ejected from the train, he was in such a state of intoxication as to render him mentally or physically incapable of taking care of himself, and in such helpless condition that, to put him off the train at the time and under the circumstances and in the place where he was ejected, would necessarily expose him to danger of death or great bodily harm from passing trains, and that appellant's agents in charge of the train at that time knew of the helpless condition of the deceased, and the danger to which he would be exposed by being then and there ejected from the train, and that they at that time, and under the circumstances and in the place where he was ejected, and with the knowledge of such helpless condition, forcibly willfully, and negligently ejected him from the train, and that he was shortly thereafter, while so mentally and physically unable to take care of himself, and in such helpless condition, run over and killed by another train in charge of appellant's officer or agents. The instructions given by the court recognize the right of the appellant to eject deceased, when he failed to produce a ticket or to pay his fare, unless some one else offered to pay and tendered his fare, and which offer was refused by the conductor. By instruction No. 3 which the court gave the jury, the recovery was confined to compensatory damages. Instruction No. 1 offered by counsel for appellant told the jury, in substance, that, if the decedent failed to produce his ticket or pay his fare, the conductor or other agent or servant of the appellant had the right to eject him, using no more force than was necessary for the purpose, and if the decedent was placed so far from the track that he was then out of danger of passing trains, and that he afterwards went upon the track, and was killed by another...