Louisville & N.R. Co. v. Ashley

• Decision Date: 22 March 1916
• Parties: LOUISVILLE & N. R. CO. v. ASHLEY.
• Court: Kentucky Court of Appeals

183 S.W. 921

169 Ky. 330

LOUISVILLE & N. R. CO. v. ASHLEY.

Court of Appeals of Kentucky.

March 22, 1916

Appeal from Circuit Court, Franklin County.

Action by Nancy Ashley against the Louisville & Nashville Railroad Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Guy H Briggs, of Frankfort, and Benjamin D. Warfield, of Louisville, for appellant.

Scott &amp Hamilton, of Frankfort, for appellee.

HURT J.

The appellee, Nancy Ashley, intending to take passage upon a train of the appellant, Louisville & Nashville Railroad Company, from Frankfort to Pleasureville, obtained a ticket and proceeded to the train, which was standing in the yard of appellant at Frankfort. She accosted a brakeman who was standing near the train, and informed him of where she desired to go, when he directed her to take the rear coach of the train. This was a car of the Pullman Company, and when she arrived at the car she informed the porter in charge of the car of her destination and inquired of him if that was the car that she should enter, and he directed her to get into it. She was accompanied by a young woman, who also entered the car with her, where they took seats in chairs near the middle of the coach. Neither of them were intending to take passage in the Pullman, and did not know that an extra fare would have to be paid by them for riding in the car. They had each ridden on trains over this road previous to this time, but had not occupied the Pullman or chair car, but the coach which they had always occupied was the rear coach upon the train, which position in the train was occupied by the coach they were now occupying. The appellee's account of what transpired thereafter, and which resulted in an injury to her arm and shoulder, and in which she was corroborated by the woman who accompanied her, was substantially as follows: When the train had passed the water tank, a short distance to the west of Frankfort, and was running at a high rate of speed, the porter came through the car and demanded of appellee her fare, when she presented him the ticket which she had obtained for passage on the train, and he said to her that he did not want that, but that she would have to pay "a quarter" extra for riding in the car. She said that she did not know that when she came into the car, and that she was only going a short distance, to Christianburg, and did not want to pay it. He said, "You will have to get up and go into the other coach then." She said "that she was somewhat old, and could not walk well while the train was running, and could not get around well on a train, and would rather wait until it stopped." He came a second time to her, and said, "I told you to go back into another coach," in a very positive voice and emphatic manner. She kept her seat, and when near Benson he came again and said, "I have told you to go back into another coach; this is the third time." The train was running at a high rate of speed, and she was a large fleshy woman, burdened with a bundle and a suit case, and the train had not come to a stop at any time since she had been directed to leave the coach and go into another. She then arose and started to leave the coach, when the train was then running upon a curve, gave a lurch, which threw her down upon a chair and then to the floor, and bruised her arm and shoulder. She arose from the floor and waited a few moments until the train slowed up in its approach to Benson, when, with the assistance of the woman who accompanied her, she went out of the Pullman coach into the next coach. The porter offered her no assistance of any kind, and does not seem to have been present when she fell. The evidence of the porter was to the effect that before directing appellee to go into the chair car at the depot at Frankfort he inquired of her if she desired to ride in the Pullman, and that she said that she did, and then, when she refused to pay the fare required for riding in the chair car in addition to the ordinary fare for riding upon the train, that he told her that she would have to go into another car, but directed her to remain until the train stopped, and that he offered to assist her in going into another coach, but she refused to permit him to do so. These statements of the porter were contradicted by appellee and her companion.

This suit was brought by the appellee to recover the damages which she alleged she had suffered, and alleged that her injuries were caused by the negligence of the servants of appellant. The appellant denied the negligence and the injuries, and pleaded as a further defense the contributory negligence of appellee. The jury returned a verdict for appellee in the sum of $1,200, and a judgment was rendered accordingly. The appellant's motion for a new trial was overruled, and it has appealed.

The appellant relies for a reversal of the judgment upon the grounds: (1) That there was no evidence of any negligence upon the part of appellant; (2) the damages allowed are excessive, and given under the influence of passion and prejudice; (3) errors of the court in admitting incompetent evidence for appellee and rejecting competent evidence offered for appellant; (4) errors of the court in giving instructions to the jury.

At the close of the evidence offered by appellee, and at the conclusion of all the evidence, the appellant moved the court for a directed verdict by the jury in its favor, but both motions were overruled, and properly so. It is not claimed that any negligent act in the operation of the train resulted in or caused the injuries to appellee. The appellee, however, was not a trespasser nor an intruder upon the train. She had purchased a ticket, which entitled her to ride upon the train, and she presented this ticket to the porter when her fare was demanded. She had gone into the coach to which she was directed to go by the brakeman and by the porter who was in charge of the Pullman car. She had informed them of her destination, and asked for information as to which coach she should enter. It is true that she did not inform either of them that she did not desire to ride in the Pullman car, but neither of them, before directing her, according to her evidence, inquired of her as to whether she desired to go in such coach. The porter testified that he made inquiry of her as to whether she desired to go into the Pullman, but she denies this. Conceding that she had no right to ride in the Pullman car without paying or tendering the extra fare required, and that she could be required to remove from that car into another upon her refusal to pay the fare, there is no doubt but that she entered the coach by mistake, and the servants of the railroad, in removing her from the coach, were required to use ordinary care for her safety, as to the time and place and manner of her removal, and, if there was a failure to exercise such care, it was negligence. When she was commanded to leave the coach and go into another, it was an expulsion of her from the coach, and the same rule, it seems, should apply to the care required to be exercised in regard to her safety as if she were to be ejected from a train. This court, in L. & N. R. R. Co. v. Ferrell, 7 Ky. Law Rep. 607, held that a railroad company may eject from its train one who has no right to be there, but before putting him off must so reduce the speed of the train as to insure his safety, or must take him to the next stopping place.

Even when those who are mere trespassers upon the trains, and who refuse to procure tickets or to pay fare, are ejected, the servants of the railroad company must use ordinary care to prevent injuries resulting to them, and must not make use of unnecessary force or violence in removing them. L. & N. R. R. Co. v. Fowler, 123 Ky. 450, 96 S.W. 568, 29 Ky. Law Rep. 905; Brown's Adm'r v. L. & N. R. R. Co., 103 Ky. 211, 44...