Louisville & N.R. Co. v. Sinclair
| Citation | 188 S.W. 648,171 Ky. 562 |
| Parties | LOUISVILLE & N. R. CO. v. SINCLAIR. |
| Decision Date | 18 October 1916 |
| Court | Court of Appeals of Kentucky |
Appeal from Circuit Court, Scott County.
Action by Fannie Sinclair against the Louisville & Nashville Railroad Company. From a judgment for plaintiff, defendant appeals. Judgment reversed, and cause remanded.
Benjamin D. Warfield, of Louisville, Emmett M. Dickson, of Paris, and Bradley & Bradley, of Georgetown, for appellant.
James F. Askew and Llewellyn F. Sinclair, both of Georgetown, for appellee.
On the 2d day of June, 1914, the appellee, Mrs. Fannie Sinclair, who is a married woman and at that time a resident of Georgetown purchased a ticket from the appellant, Louisville & Nashville Railroad Company, which entitled her to ride as a passenger upon its train and over its line of railroad from Frankfort Ky. to Nashville, Tenn. In company with her sister-in-law Mrs. Llewellyn Sinclair, she came from her home at Georgetown to Frankfort, on the morning of June 2d, over the Frankfort & Cincinnati Railroad, and arrived at Frankfort at 9:56 a. m. on that morning. At that time it seems there was an arrangement by which a passenger coach was upon each day brought from Richmond, Ky. to Frankfort, over the line of the Louisville & Atlantic Railroad. At the latter place it was detached from the train which brought it from Richmond and was placed upon a track in appellant's yards. When the regular train of appellant from Lexington arrived at Frankfort, it would pass this detached coach and, after passing through one or more switches, would get upon the same track upon which the detached coach stood, when it would back to and couple onto the detached coach and carry it as a part of its train to Louisville. Only a few minutes intervened between the arrival of the coach from Richmond and the arrival of the Frankfort & Cincinnati train from Georgetown and appellant's regular southbound train from Lexington. On the morning in question, the coach which was brought over the Louisville & Atlantic Railroad from Richmond was placed upon a track in appellant's yards, at a point a short distance to the east of appellant's depot, at Frankfort, and between it and the tunnel through which appellant's train from Lexington arrived at Frankfort. The train from Richmond arrived at Frankfort prior to the arrival of the train from Georgetown, and the coach, to be attached to appellant's train from Lexington, had been detached and placed in position upon the track for some minutes before the arrival of the train from Georgetown. When the latter train arrived at Frankfort, the appellee and her sister-in-law came out of it and went into the waiting room of appellant in the depot, but immediately approached the ticket agent of appellant in his office in the depot and requested information as to the train which they would take to continue their journey to Nashville, over the appellant's road. The ticket agent pointed out to them the coach standing upon the track, told them that was the coach in which they would ride, and directed them to get into it. The evidence is contradictory as to whether the train from Lexington had then arrived in the Frankfort yards. The appellee and her companion, however, immediately proceeded to the coach as directed and entered it from the end, which was to the west. At the time of their entering into the train, several passengers were in the coach and were sitting upon the seats near to the door to its western end.
The appellee claims: That she and her companion immediately upon entering the coach proceeded to select a seat near the middle of the coach and went immediately to it, wherein they both proposed to be seated. Appellee was walking in front, and, when she arrived at the seat, she stepped aside to permit her sister-in-law to enter first, as the sister-in-law desired to sit against the window. Her sister-in-law at once entered between the seats and sat down upon the seat at the end against the window. Appellee was proceeding to sit down upon the end of the seat next to the aisle in the coach, but, before she had a reasonable opportunity in which to sit down, the train of appellant, which had arrived from Lexington and which consisted of an engine and four or five cars, backed against the coach in which she was for the purpose of attaching it to the train. That the trainmen handling appellant's train carelessly and negligently backed the train against the coach with great, unusual, and unnecessary force. That the coupling was made with such unusual and unnecessary force that the collision between the train and the coach was so unnecessarily and unusually violent that she was thereby thrown to the floor of the car, headlong, and with such force that the contact broke one of her hips, and she was unable to arise without assistance. She was unable to continue her journey, and, after a short space of time, she was lifted up by two of the passengers in the coach and was borne by them into the depot, from which place she was carried to a hospital, where she was confined for five weeks. She was then taken to her home, and from thence to Lexington, where she remained in a hospital for five or six weeks. That she was caused to endure much mental and physical pain and suffering by her injuries. That, when the fracture of her hip healed, one of her limbs were shorter by an inch to an inch and three quarters than the other. That she was caused by the injury to be a permanent cripple and compelled to use crutches at all times in walking. That her injury was permanent, and since she had received it she had been unable to perform the work of housekeeping, which she had theretofore done. To recover damages for the injuries sustained, she instituted this action.
The appellant's answer consisted of a traverse of the averments of the petition and amended petition and a plea of contributory negligence upon the part of appellee, without which it was alleged that the injuries received by appellee would not have been sustained. The alleged contributory negligence was denied by a reply. The contention of appellant was that the coupling of cars was one of usual character and was made without unnecessary or unusual force or violence; that appellee had contributed to her injury by negligently standing in the car and failing to secure a seat before the coupling of the train and coach was attempted; that no more force was used in making the coupling than was usual and necessary for the purpose; that the servants of appellant were in no wise negligent; and that appellee's injuries would not have been sustained but for her own negligence. Quite a number of witnesses gave testimony upon the issues, and their evidence was exceedingly conflicting. A trial of the action before the court and jury resulted in a verdict of the jury for the appellee, by which the damages which appellee had suffered was fixed at the sum of $8,000, and a judgment of the court was rendered in accordance with the verdict of the jury. The appellant's motion for a new trial was overruled, and hence this appeal.
The grounds for a new trial embrace many things, but the briefs for appellant only make mention of the following grounds, and rely upon them, only, for a reversal of the judgment, viz (1) The appellant was not guilty of any negligence, and a verdict for it ought to have been directed at the close of the evidence for appellee. (2) The appellee was contributorily negligent, as a matter of law, and for that reason a verdict ought to have been directed for appellant. (3) The verdict is not sustained by a sufficiency of evidence. (4) The court erred in the admission of incompetent evidence for appellee. (5) The...
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