Louisville & N.R. Co. v. O'Brien

• Citation: 174 S.W. 31,163 Ky. 538
• Parties: LOUISVILLE & N. R. CO. v. O'BRIEN.
• Decision Date: 16 March 1915
• Court: Court of Appeals of Kentucky

174 S.W. 31

163 Ky. 538

LOUISVILLE & N. R. CO. v. O'BRIEN.

Court of Appeals of Kentucky.

March 16, 1915

Appeal from Circuit Court, Hart County.

Action by Louis O'Brien against the Louisville & Nashville Railroad Company. From a judgment for plaintiff, defendant appeals. Reversed, with instructions.

Watkins & Carden, of Munfordville, Sims & Rodes, of Bowling Green and Benjamin D. Warfield, of Louisville, for appellant.

H. L James, of Elizabethtown, and McCandless & Larimore, of Munfordville, for appellee.

MILLER C.J.

This is an appeal from a judgment in favor of the appellee, Louis O'Brien, for $1,500 against the appellant, who was the defendant below, for personal injuries received by O'Brien in stepping or falling from one of appellant's moving trains.

The accident came about in this way: On October 6, 1913 O'Brien boarded appellant's local passenger train at Gaither's Station, south of Elizabethtown, and paid his fare to Dividing Ridge, a flag station about 25 miles further south. The train reached Dividing Ridge at 7:48 o'clock p. m. O'Brien and his companion, Thomas, rode in the "smoker," which was immediately in front of the ladies' car. As the train approached Dividing Ridge, the porter and flagman called out the station in the "smoker" and in the ladies' car. The flagman then took his station at the steps of the ladies' car, which was next to the "smoker," for the purpose of assisting passengers to alight from the train. The conductor took his station at the other end of the "smoker," next to the baggage car, for the purpose of seeing that the baggage was properly unloaded. Immediately after the station Dividing Ridge had been called out, O'Brien and Thomas got up and started to leave the "smoker" by the rear door and platform next to the ladies' car. The train was still moving, and was about 100 yards from the station. O'Brien testified that as he started down the steps of the smoker, and when he had reached the third step from the top, he stepped on a banana peel, and slipped off the train, feet foremost. Thomas was immediately behind O'Brien when he fell from the train, and, after the train had stopped, Thomas went back and found him at a point about a hundred yards from the station, and sitting upon the ground, in an unconscious condition. He, however, soon regained consciousness. A physician was called, and O'Brien, accompanied by the physician, one of the railroad employés, and Thomas, walked to Gardner's residence, in the neighborhood, where he remained all night. The doctor dressed his bruises, and the next morning O'Brien rode in a buggy to the house of a friend, a few miles distant, where he remained some three or four days, and then returned to his home near Gaither's Station. Although O'Brien was 63 years old, no bones were broken, and his injuries do not seem to have been serious or permanent.

After the accident, O'Brien did not immediately claim that he had slipped on a banana peel, and he did not say anything about it to Gardner or to Mrs. Gardner, or to any one present, except to Dr. Craddock, who dressed his wounds. Dr. Craddock testified that, either before or while he was dressing O'Brien's wounds, "he said he slipped on something between the cars, and he thought it was a banana peel." With this exception, O'Brien made no claim that he had slipped upon a banana peel for quite a while after the accident.

Thomas, who was immediately behind O'Brien when he fell, did not see a banana peel, and says he could not tell whether O'Brien slipped off, or fell off; and he further says he told the conductor or brakeman he did not know which it was; that O'Brien had fallen off the train.

Starks, the flagman, who came to the end of the ladies' car next to the "smoker" and was standing there while the train remained at the station, did not see O'Brien fall from the steps, and knew nothing about it until a passenger coming out of the "smoker," presumably Thomas, told him a man had fallen off the train some distance down the track. Starks reported that fact to Parsons, the conductor, who then went through the train for the purpose of ascertaining whether any of his passengers were missing, but missed none. The train left Dividing Ridge without any of the trainmen having learned that O'Brien had fallen from the train; but at the next station the conductor telegraphed to the proper officer of the road, giving him the information he had received about a man falling from the train, and asking that an investigation be made. As a result of that telegram, one of the railroad employés at Dividing Ridge found O'Brien shortly after Thomas had reached him, and assisted him to the Gardner residence.

There is no evidence that any one saw a banana peel on the car step at any time, except the testimony of O'Brien that he saw it just as he stepped on it. There is no evidence that any one on the train ate a banana on that trip, or that a banana was sold on the train, or that any one had a banana on the train, on that trip. The only testimony even tending to show there was a newsboy or "butcher" on the train, or that there were any bananas on the train, is that of O'Brien, who testified, upon that subject, as follows:

"Q. Did you see any bananas on that train? A. I didn't see the bananas on the train. Only saw a fellow selling them, I suppose; he had them there in his basket. Q. Tell what you saw? A. They were sitting right there at the left-hand side of the door as we came out, on some kind of a basket or box with a lid on it. He had them in his basket. Q. Do you know who had those bananas? A. No, sir. Q. Do you know what they called him? A. He goes by the name of 'butcher boy.' I don't know what his other name is. Q. Did you see him on the train that night? A. Yes, sir; I seen him going through the train. Q. With anything? A. No, sir; he didn't have anything selling it, unless it was cigars. He didn't have any in his hand."

Upon the issue as to whether there was a "butcher boy" on the train, O'Brien is contradicted by the three members of the train crew, all of whom testified there was no "butcher boy" on the train on that trip. It was a local train, and there was very little or no necessity for a "butcher boy"; and the news company that owned the business of selling newspapers and edibles upon the train only put an agent on these local trains occasionally. But giving O'Brien's evidence its fullest force, it does not show that any bananas were sold on the train, or that any one had bananas on the train. Moreover, there was no evidence whatever as to when, where, or by whom the banana peel was thrown or placed on the car step, or that defendant had any notice thereof, either actual or imputed. Dividing Ridge Station was on the east side of the track; and Sonora, 14 miles north of Dividing Ridge, was the last train stop at which the station was on the east side...