Louisville & N. R. Co. v. Thomas

• Decision Date: 17 October 1944
• Citation: 183 S.W.2d 19,298 Ky. 494
• Parties: LOUISVILLE & N. R. CO. v. THOMAS.
• Court: Kentucky Court of Appeals

183 S.W.2d 19

298 Ky. 494

LOUISVILLE & N. R. CO. v. THOMAS.

Court of Appeals of Kentucky

October 17, 1944

Rehearing Denied Nov. 28, 1944.

Appeal from Circuit Court, Grant County; Ward Yager, Judge.

Action by Janie Thomas, by her next friend, Margaret Thomas, against Louisville & Nashville Railroad Company to recover damages for tortious expulsion of plaintiff from defendant's train. Verdict and judgment for plaintiff, and defendant appeals.

Judgment affirmed.

L. M. Ackman, of Williamstown, and H. T. Lively and Woodward, Dawson & Hobson, all of Louisville, for appellant.

R. L Vincent and C. C. Adams, both of Williamstown, for appellee.

VAN SANT, Commissioner.

Appellee Janie Thomas, an infant thirteen (13) years of age, sued by her next friend, Mrs. Margaret Thomas, to recover of appellant, Louisville & Nashville Railroad Company, damages growing out of the following alleged facts testified to by her: On April 3, 1942, she purchased a round-trip ticket over appellant's railroad from Walton, Kentucky, to Bowling Green, Kentucky. She made the first trip of the journey on that day, and remained in Bowling Green until April 5, 1942. Immediately before her return trip she presented her ticket to the ticket agent at Bowling Green, and was advised by him to take the Pan-American, scheduled to leave at 2:15 P. M. Before boarding the train, she showed her ticket to the brakeman, who stood at the entrance of the coach on which she rode. He said to her, 'Walton, O. K'; and she was assisted onto the train. Shortly after leaving Bowling Green the conductor collected her ticket and informed her the train did not stop at Walton, and it would be necessary for her to leave the train at Elizabethtown, Louisville, or Worthville. He retained her ticket, and at no time tendered it back. She protested his demand that she leave the train; whereupon, the conductor cursed, abused, and pushed her, and threatened that if she did not leave the train, he would throw her off. That his conduct mortified, humiliated, and frightened her, as a result of which she suffered mental anguish and physical pain. She prayed for compensatory damages in the sum of Twenty-Five Hundred Dollars ($2,500), and for punitive damages in a like amount. The jury on the first trial rendered a verdict in her favor for One Thousand Dollars ($1,000) compensatory damages. On motion, the Court awarded appellant a new trial, upon which appellee was warded a verdict of One Thousand Dollars ($1,000) compensatory damages, and Two Hundred Fifty Dollars ($250) punitive damages; judgment was entered accordingly. Reversal is urged upon the grounds, (1) that the verdict is not sustained by sufficient evidence; (2) the damages are excessive and appear to have been given under the influence of passion and prejudice; (3) the Trial Court erred in his instructions to the jury; (4) the Trial Court erred in refusing to give instructions offered by appellant; and (5) the Court erred in admitting incompetent and irrelevant evidence over the objection of appellant.

The argument in respect to the insufficiency of the evidence is based upon the contention that, under the facts recited by appellee, she was not compelled to get off of the train at Elizabethtown; that she could have gotten off of the train at Louisville or Worthville, therefore, when she alighted at Elizabethtown, her departure from the train was voluntary. This argument, in its best light, is specious. According to appellee's testimony, she was required to get off at one of three places; it made no difference which she chose; the fact remains that she was not permitted to remain on the train. It is next argued that appellee's testimony is so improbable and unreasonable that it should not be accepted as sufficient evidence upon which to sustain the jury's verdict. The improbability and unreasonableness of the testimony is based upon (1) the denial of the conductor and the porter of the conduct complained of; (2) the lack of motive on the part of the conductor for the alleged mistreatment of appellee; (3) the failure of any of the other passengers on the train to remonstrate with the conductor concerning his conduct; and (4) the alleged inconsistency between the testimony of appellee in the deposition she gave as if under cross-examination and that given by her on the trial. The fact that testimony is denied cannot be relied upon as proof of its lack of plausibility; nor is it necessary to show motive for wrongful conduct to recover for a tort. The only discrepancy pointed out between the deposition and the testimony is, in reality, not a discrepancy at all. On the trial, appellee testified that the conductor told her, 'If you don't get off I am going to put you off'; whereas, she did not in specific terms relate this fact in her deposition; nevertheless, she did relate all other facts in her deposition that she testified to on the trial, the substance of which was that she would be put off if she did not get off. The deposition was taken by appellant as if under cross-examination; and no question was asked her which would necessarily call for the answer which it is claimed she did not make. Appellee was corroborated in her statement that she was a passenger on the train by her sister, who took her to the station; she was corroborated in the statement that she left the train...