Louisville & N.R. Co. v. Quinn

• Citation: 187 Ky. 607,219 S.W. 789
• Parties: LOUISVILLE & N. R. CO. v. QUINN.
• Decision Date: 02 March 1920
• Court: Kentucky Court of Appeals

219 S.W. 789

187 Ky. 607

LOUISVILLE & N. R. CO. v. QUINN.

Court of Appeals of Kentucky.

March 2, 1920

Rehearing Denied April 16, 1920.

Appeal from Circuit Court, Rockcastle County.

Action by John M. Quinn against the Louisville & Nashville Railroad Company. Judgment for plaintiff, and defendant appeals. Reversed, and remanded for new trial.

B. D Warfield, of Louisville, and J. W. Brown and C. C. Williams both of Mt. Vernon, for appellant.

Ben Chapeze, of Louisville, and L. W. Bethurum, of Mt. Vernon for appellee.

CLAY C.

In this action for personal injuries plaintiff, John M. Quinn, recovered of defendant, Louisville & Nashville Railroad Company, a verdict and judgment for $3,000. The company appeals.

According to the evidence for plaintiff, he went to Glomar on July 3, 1917. Glomar is a flag station, and no agency is maintained there. In addition to the main line there is a spur track there. After finishing his business plaintiff started down the spur track for the purpose of taking passage on the afternoon train to Hazard. As he approached, he flagged the engineer with a newspaper. The engineer saw him and motioned to him to come on. Just as the train stopped plaintiff caught hold of the iron railings above the steps and placed one foot on the lower step. The train then started with a violent jerk which threw plaintiff's foot from the steps. Though his hands slipped down on the railings, he managed to hold on, and was dragged for about 200 yards, during which time his feet were striking the ties. He then managed to put his knee on the step and crawled into the coach. He never told any of the employés of the company that he was injured. A soldier on the train asked him if he had been hurt. After reaching Hazard he went to his room, and experienced great suffering from his foot. After remaining there for a while, he went to Louisville, where his foot was operated on. Though Mrs. Angeline Stacy was impeached, she and C. H. Hawkins, who claimed to be present, corroborated plaintiff as to the circumstances of the injury. On the other hand, the engineer testified that he had no recollection of being flagged by plaintiff. He further stated that it was no part of his duty to see whether passengers had boarded the train, but that he started the train always on signals from the conductor. Neither the conductor nor the brakeman saw plaintiff, but they both say that the train stopped long enough for a number of passengers to board the train. They further say that the company maintained a platform composed of screenings and cinders on the left-hand side of the track going towards Hazard and that passengers always boarded the train from that side of the track. On the other hand, the evidence for plaintiff tends to show that passengers were accustomed to board the train from either side of the track.

It is first insisted that the court should have directed a verdict in favor of defendant because plaintiff's story of what happened was inherently incredible, and the rule announced in L. & N. R. Co. v. Chambers, 165 Ky. 703, 178 S.W. 1041, Ann. Cas. 1917B, 471, should have been applied. In this connection attention is called to the fact that plaintiff was unable to get on the train while it was moving slowly, and as his hands had slipped down on the railings, and the speed of the train had greatly increased by the time the train had gone 200 yards, it was then a physical impossibility, as stated by the conductor and brakeman, for plaintiff to pull himself up so that he could get his knee on the step. The credibility of a witness being for the jury, the courts are not authorized to reject his testimony and refuse to submit the case to the jury on the ground that the facts stated are highly improbable. It is only where the facts testified to are utterly at variance with well-established and universally recognized physical laws, and therefore inherently impossible, that courts may refuse to submit the case to the jury. Wasioto & B. M. R. Co. v. Hall, 167 Ky. 819, 181 S.W. 629; City of Louisville v. Dahl, 170 Ky. 281, 185 S.W. 1127. For aught that we know, plaintiff may have swung into a position where his feet touched the ground in such a way as to enable him, by the exercise of great strength, to place his knee on the steps. Therefore we cannot say that it was a physical impossibility for him to have done this. The most that we can say is that it was highly improbable, and, that being true, his credibility was a question for the jury.

In addition to instructions on the measure of damages and contributory negligence, the court gave the following instructions:

"(1) The court instructs the jury that it was the duty

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