Louisville & N.R. Co. v. Cooper
| Decision Date | 05 May 1915 |
| Citation | 175 S.W. 1034,164 Ky. 489 |
| Parties | LOUISVILLE & N. R. CO. v. COOPER. |
| Court | Kentucky Court of Appeals |
Appeal from Circuit Court, Whitley County.
Action by Isabelle D. Cooper against the Louisville & Nashville Railroad Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded, with directions.
Hiram H. Tye, of Williamsburg, and Benjamin D. Warfield, of Louisville, for appellant.
J. M Robsion, of Barbourville, for appellee.
The main street of the town of Corbin is Center street, which runs from west to east, and is crossed by the Louisville & Nashville Railroad, which runs north and south. On the night of December 18, 1912, which was a cold night with snow on the ground, the appellee, Mrs. Isabelle D. Cooper, who resided on Poplar street, on the west side of the Louisville & Nashville Railroad, went from her home to the post office in Corbin which is on the east side of the railroad, and on Center street. The post office is less than a block from the railroad crossing over Center street. The appellee was a stout, robust woman, weighing about 175 pounds at that time and comfortably and warmly dressed, and accompanied by her daughter, who was about 21 years of age. After going to the post office, she started to return to her home by way of Center street, and when she arrived at the railroad crossing she found the street blockaded by a freight train of considerable length, which was standing upon the track. There was no other very convenient or accessible way for a lady going from the post office to reach the home of Mrs. Cooper, except by the way of Center street, and over the railroad crossing over the street. On the east side of the railroad crossing, and about 10 steps from the crossing, was Blair's store, and about 15 steps from the crossing was Candler's restaurant, and between that and the post office was the Wilbur Hotel, and in the same building with the post office was Green's store. The evidence does not certainly show whether Blair's store and Green's store were open or not at the time appellee came to the railroad crossing; but it is undisputed that Candler's restaurant, the Wilbur Hotel, and the post office were all open and comfortably warm, and were respectable places. On the other side of Center street from these buildings was another store, and also a dwelling house.
The evidence introduced by the appellee shows that when she arrived near to the railroad crossing, and 5 or 6 steps from the restaurant, she discovered the train across the street, and remained standing there for about 10 minutes, as she states, expecting that it would be moved out of the way. Becoming cold, she and her daughter walked back past the restaurant and the storehouses, and the hotel, down to the corner about a block away from the crossing, and returned, as she says, to keep from growing cold. When she returned to the crossing the train was still across the street, and did not move for from 10 to 15 minutes, when it backed back towards the depot, and she went from there to her husband's store, and from there to her home. She proved by her own testimony that she was chilled by standing waiting for the train to move, and the next morning had a pain in her back, and headache, and a cold, which confined her to her bed for three or four days. In this she is corroborated by her daughter, and husband's father, and another relative. After that she claims to have suffered from this cold and was affected with catarrh, and was at times confined to her bed; but she did not call a physician, nor seek the services of one, until in the following November or December, nearly one year thereafter, when her husband visited a physician, and got him to prescribe a remedy for scanty menstruation, from which she claims to have been suffering. This suit was filed on December 13, 1913, and was tried on the 12th day of March, 1914; but the appellee did not have the services of a physician at any time until the night before the trial, when a physician was sent for, though she claims that she used patent medicines and other medicines as remedies for the troubles from which she suffered, and that she had not been during this time able to do her household work, as she had before December 18, 1912, and had suffered a great deal from the effects of it, but had not been confined to her bed at any time for three months before the trial. The physician who was called to see her testified that she was in a run-down state of health, somewhat nervous, and had some symptoms of la grippe. He also testified that la grippe and a cold were both infectious diseases, and that a person could have one without the other; but a person having the bacilli which produces la grippe, by reason of having a cold and the physical strength impaired, would give the la grippe the opportunity to develop itself, and that exposure on a cold night possibly and probably did produce a cold, which would superinduce la grippe.
The appellee, in her petition, alleged that she was returning from the post office in the direction of her home, that she found the street crossing blockaded by the freight train, which remained there for about 30 minutes without moving, and that she was compelled to await its removal, and that she became chilled, and contracted a cold from so doing, which resulted in the suffering and impairment of health above mentioned. All of this was alleged to have resulted from the negligence of the employés operating the railroad train in permitting the same to remain across the street for the time mentioned, and that they by the exercise of ordinary care could have known that she was so detained in the street, and that she did not know, and could not have known by the exercise of ordinary care and prudence, that she was exposing herself to the peril of a cold, and asked to recover a judgment in damages of $5,000 against the appellant. The appellant, by its answer, traversed all of the affirmative allegations of her petition, and in addition thereto alleged that if she did become cold from waiting in the street, as she alleged, that resulted from her own negligence in not seeking a shelter from the cold in one of the nearby houses, which were then and there open and comfortably warm. The affirmative allegations were, by agreement of parties, considered as controverted of record. Upon these issues the case went to trial before the court and a jury, and at the conclusion of the evidence for the appellee the appellant moved the court to instruct the jury to return a direct verdict for it, which motion was overruled.
The evidence also showed that the appellee saw no employé of the railroad company about the crossing while she was standing there. Evidence was introduced by the appellant of a young man and a young lady, who came to the crossing while appellee was there, but on account of the weather immediately went into the restaurant, which was about 10 steps away, and remained 10 or 15 minutes, when they came out, and the train had moved. The appellant also proved by three near neighbor women of the appellee that they had known nothing of her sickness, nor had observed any impairment of her health, or her failure to perform her work, as she had done, before the occurrence complained of as her ground for damages. The appellant at the close of all of the evidence again moved the court to direct the jury to return a directed verdict for it, which motion was overruled, and it took exceptions thereto. The jury returned a verdict for the appellee in the sum of $2,000. The appellant filed grounds and moved the court to set aside the verdict, and to grant it a new trial on account of alleged errors of the court in overruling its motions for a peremptory verdict in its favor, and also on account of the admission of incompetent evidence against it, and the rejection of competent evidence offered by it, and because the court had misinstructed the jury over the objection of the appellant, and had refused to instruct the jury as requested by the appellant in writing. The court overruled the motion for a new trial, and the appellant now appeals to this court.
It is insisted for the appellee that, inasmuch as the train was permitted to remain across the crossing of the street for more than five minutes, that was negligence in itself on the part of appellant, and rendered...
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