Louisville & N.R. Co. v. Bennett

• Decision Date: 28 February 1919
• Citation: 183 Ky. 445,209 S.W. 358
• Parties: LOUISVILLE & N. R. CO. v. BENNETT.
• Court: Kentucky Court of Appeals

209 S.W. 358

183 Ky. 445

LOUISVILLE & N. R. CO. v. BENNETT.

Court of Appeals of Kentucky.

February 28, 1919

Appeal from Circuit Court, Daviess County.

Action by E. L. Bennett against the Louisville & Nashville Railroad Company. Judgment for plaintiff, new trial denied, and defendant appeals. Affirmed.

Browder & Browder, of Russellville, and B. D. Warfield, of Louisville, for appellant.

Louis I. Igleheart and Ben D. Ringo, both of Owensboro, for appellee.

THOMAS J.

By this suit the appellee and plaintiff below sought to recover from the appellant and defendant below $1,000 damages resulting from defendant's violation of its contract with plaintiff to safely carry him as a passenger on one of its trains from Owensboro, Ky. to Utica, Ky. a distance of about 11 miles. The violation alleged was produced by a willful, unlawful and unjustifiable assault made upon plaintiff by defendant's flagman after the former had boarded the car to be transported as indicated, and while the train was waiting in the yards at Owensboro to meet an incoming freight train. Compensation only was sought for loss of time, medical and physicians' bills, and for physical and mental pain suffered because of the assault.

In addition to denying the affirmative allegations of the petition, the answer pleaded: (a) Boisterous and disorderly conduct on behalf of the defendant and indecent language used by him to such an extent as to alarm and intimidate other passengers on the train, and (b) an assault by him on the flagman, and that the latter did no more than was reasonably necessary, or than appeared to him in the exercise of a reasonable discretion to be necessary, to protect himself from the threatened assault by plaintiff and to protect the other passengers from plaintiff's indecent language and conduct on the train. These defenses were put in issue, and upon trial the jury returned a verdict in favor of plaintiff for $1,000, on which judgment was rendered. Defendant's motion for a new trial having been overruled it prosecutes this appeal.

Three points are very strongly argued before us as grounds for a reversal, they being: (1) That the verdict is flagrantly against the evidence; (2) that it is excessive; and (3) that the court erred in refusing to give to the jury instruction No. 5 offered by the defendant at the trial.

Before taking up these grounds for consideration, we deem it necessary to say that the law is now well established in this and other courts that out of the relationship of passenger and carrier the law implies a contract by the latter to exercise the highest degree of diligence and care to transport the former with safety and to protect him while the relationship exists from insults and wanton interference of strangers and fellow passengers, and from such insults interferences, or assaults from the carrier or any of its servants, and for the violation of such implied contract the carrier is liable to the injured passenger for the damages that he might sustain. I. C. R. R. Co. v. Winslow, 119 Ky. 877, 84 S.W. 1175, 27 Ky. Law Rep. 329; Winnegar's Adm'r v. Central Passenger Ry Co., 85 Ky. 547, 4 S.W. 237, 9 Ky. Law Rep. 156; L. & N. R. R. Co. v. Ballard, 85 Ky. 311, 3 S.W. 530, 9 Ky. Law Rep. 7, 7 Am. St. Rep. 600; Id., 88 Ky. 159, 10 S.W. 429, 10 Ky. Law Rep. 735, 2 L. R. A. 694; L. & N. R. R. Co. v. Donaldson, 43 S.W. 439, 19 Ky. Law Rep. 1384; Strull v. L. & N. R. R. Co., 76 S.W. 181, 25 Ky. Law Rep. 678; White v. South Covington & C. St. Ry. Co., 150 Ky. 681, 150 S.W. 837; Louisville Railway Co. v. Dott, 161 Ky. 759, 171 S.W. 438, L. R. A. 1915C, 681; and L. & N. R. R. Co. v. Bell, 166 Ky. 400, 179 S.W. 400.

In the Winnegar Case, referred to, this court, in stating the rule governing the duties of the carrier toward the passenger, said:

"It is not material whether the violation consists in putting the passenger off at a point before his destination is reached, or by insulting him, or in assaulting him. They are all plain violations of duty, for which a recovery may be had. * * * The law makes the carrier responsible for the acts of the person in charge of the car, and who for the time has the voluntary custody of the passenger, with the implied obligation that he will exercise the highest degree of diligence to transport him safely. In Goddard v. Grand Trunk Railway, 57 Me. 202, 2 Am. Rep. 39, it was held that the carrier was obliged to protect his passengers from violence or insult from whatever source it arises. He must use all such reasonable precautions as are necessary for that purpose."

This language was quoted with approval in the Winslow Case, and we find no case in conflict with it.

While these high duties are imposed by the law upon the carrier, it is also the duty of the passenger to observe reasonable regulations and to deport himself upon the train in a decent and orderly manner. But it does not necessarily follow that, if he should fail in any of these respects, the carrier or any of his servants having him in charge would be authorized in applying unlimited corrective methods to the passenger as the carrier or his servant might conclude necessary for the occasion. If the passenger becomes so unruly, insulting, boisterous, or indecent as to justify it, he might be ejected from the train, since by such conduct he would forfeit his rights as a passenger and the carrier under his duty to other passengers would be authorized in the manner indicated to remove the recalcitrant passenger from the train provided it was attended with no danger to the latter. The cases further agree that, if the carrier or his servant in charge of the passenger is assaulted by the latter and thereby placed in danger or apparent danger of death or great bodily harm, the carrier or his servant in the exercise of the right of self-defense may administer such punishment to the passenger as may be necessary, or in the exercise of a reasonable discretion appears to be necessary, to avert the danger. But beyond these limits the carrier is not authorized to go without incurring responsibility to the passenger for the injuries sustained. With these rules before us, we will as briefly as possible consider the three grounds relied upon for a reversal.

With reference to the first contention, the facts are that defendant's train left Owensboro for Utica at about 3:45 p. m. Plaintiff had been in Owensboro since about 12 o'clock that day, the greater portion of which time he had spent in a dental office, where he had seven teeth extracted. According to his testimony, and the witness who was with him throughout the time, he took one drink of liquor before going to the dental office. There was scarcely time to get from the dental office to the depot to catch the train, and plaintiff's companion purchased the tickets while the former boarded the train, entering the smoking compartment, which, as well as the ladies' coach, was very much crowded with passengers. There being no vacant seat, plaintiff sat down in the lap of an acquaintance with his feet hanging over the arm of the seat, when the conductor approached him and the other passengers upon that seat requesting their tickets. Plaintiff's companion, who was nearby, handed the tickets to the conductor; but the passenger in whose lap plaintiff was sitting could not get to his ticket since plaintiff was reclining upon his arm. The conductor requested plaintiff to rise up, which he did, according to the testimony of the conductor, who about that time turned to the other side of the car and began taking up tickets from other passengers, when he heard the flagman, who was standing close by, say to plaintiff, "Keep your hands off of me," when plaintiff replied: "You God damn son of a bitch! Do you think you can run over me"? Whereupon, the flagman struck him. The testimony of the flagman on this point is:

"Bennett was sitting in two men's laps in one seat, and the conductor asked him to get up so the old gentleman could get his ticket out of his pocket, and he got up, and he told him to stand out of the seat. There wasn't room enough for the old man to get into his pocket to get his ticket, and he asked him to stand around, and the conductor turned his back taking tickets on the other side of the car, and it seemed like he didn't pay any attention to the conductor, and I said, 'Stand back so the old man can get his ticket.' The train was crowded. We had a big crowd out of Owensboro, and I caught hold of him and pulled him so the old man could get his ticket out of his pocket, and he grabbed hold of him and jerked him around, and I told him not to do it, and finally he grabbed me around the neck, and I told

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