Louisville & N.R. Co. v. Moore

• Decision Date: 22 November 1912
• Citation: 150 Ky. 692,150 S.W. 849
• Parties: LOUISVILLE & N. R. CO. v. MOORE.
• Court: Kentucky Court of Appeals

150 S.W. 849

150 Ky. 692

LOUISVILLE & N. R. CO. v. MOORE.

Court of Appeals of Kentucky.

November 22, 1912

Appeal from Circuit Court, Gallatin County.

Action by Scott B. Moore against the Louisville & Nashville Railroad Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Benjamin D. Warfield, of Louisville, R. B. Brown, of Warsaw, and Jno. S. Gaunt, of Louisville, for appellant.

E. E Winn, of Warsaw, and Botts, Perry & Lindsay, of Owenton, for appellee.

SETTLE J.

This is an appeal from a judgment entered upon a verdict awarding appellee $10,000 damages for personal injuries sustained by him, as alleged, through the negligence of appellant's servants in operating its passenger train, whereby he was violently thrown to the ground, his arm broken, and shoulder injured. A motion was made by appellant in the court below to require appellee to make his petition more specific, and it also filed a general demurrer to the petition. The motion and demurrer were overruled, to which the appellant excepted. It thereupon filed an answer of two paragraphs, the first containing a traverse, the second pleading contributory negligence on the part of the appellee, and the latter paragraph was traversed by appellee's reply.

A reversal of the judgment is sought by appellant on the grounds (1), that the court erred in overruling its motion and demurrer; (2) in refusing it a peremptory instruction (3) in the admission and rejection of evidence; (4) in instructing the jury; (5) that the damages are excessive.

As it cannot be said that the petition does not state a cause of action, at least to the extent of authorizing a recovery of damages for physical and mental sufferings, the demurrer was properly overruled. The motion to make the petition more specific should have been sustained.

While the averments of the petition as to the negligence on the part of appellant's servants in operating the train and causing appellee's injuries are, we think, sufficiently definite and comprehensive, the petition fails to state at what station appellee was injured; and, although it alleges the injuries sustained to his person, the consequent suffering, both physical and mental, and that he was put to great expense for surgical treatment, and in paying railroad fare and hotel bills in procuring same, it fails to allege the amount or aggregate of the expenses thus incurred by him. It is also alleged in the petition that appellee was, to an extent not described, crippled by the injuries he sustained. It is not therein alleged that he was permanently injured thereby, or that his ability to follow his usual occupation and to earn money is permanently impaired, or even diminished, by the injuries the alleged negligence of appellant's servants caused him. Appellee should have been required to amend his petition by setting out specifically the station or place at which his injuries were received, the amount reasonably expended by him for surgical treatment and in procuring same, and whether or not such injuries caused a temporary or permanent impairment of his ability to earn money.

It is a well-recognized rule of law that in an action, like the one at bar, if the plaintiff would recover for an injury, which was the natural and proximate, but not the necessary consequence of the defendant's wrongful act, it must be alleged in the petition or he cannot recover such special damages. In Central Kentucky Traction Co. v. Chapman, 130 Ky. 342, 113 S.W. 438, we said, Judge O'Rear writing: "The petition charged a certain injury, describing it as painful and disabling, so that appellee was confined to her room for several weeks. In the instruction defining the measure of damages it was allowed that appellee might be compensated, in addition to her suffering endured and reasonably anticipated, and her impairment to earn money, for her loss of time. Loss of time is classed by the courts and writers as special damages. Like physician's bills, medicine, and other special elements of even proximate results of actionable negligence, they must be specially pleaded in order that they may be recovered for. Permanent impairment of earning capacity is an element of such general damages. But even that ought to be pleaded if a recovery on its account is sought. Much more so is it deemed that items of special damages should be set out, so as to bring notice home to the defendant that compensation is sought on that score, that the defendant may bring its witnesses to rebut the claim if it so desired." Blue Grass Traction Co. v. Ingles, 140 Ky. 488, 131 S.W. 278; L. & N. R. R. Co. v. Dickey, 104 S.W. 329, 31 Ky. Law Rep. 894; L. & N. R. R. Co. v. Reynolds, 71 S.W. 516, 24 Ky. Law Rep. 1402; Newman's Pleading & Practice, §§ 345c, 441; 5 Cyc. 719; Lewis' Greenleaf on Evidence, § 254. In the more recent case of L. & N. R. R. Co. v. Grassman, 147 Ky. 618, 144 S.W. 748, we held that, in order to recover damages for a permanent impairment of the plaintiff's power to earn money, it was sufficient to allege in the petition that the plaintiff was permanently injured.

Our examination of the evidence found in the record fails to convince us that the refusal of the trial court to grant the peremptory instruction asked by appellant was error. It appears from the evidence that appellee is a resident of and hotel keeper at Sparta, Ky. and that his injuries were sustained at the station of that town in attempting to alight, at midnight, from one of appellant's trains upon which he had ridden from Cincinnati as a passenger; the train being at the time moving slowly, which, it was claimed, caused him to fall upon the station platform of crushed stone, the fall resulting in the breaking of a bone of one of his arms, and the tearing loose of some of the muscles or ligaments of the shoulder. According to his testimony, when the train whistle blew for Sparta, he was seated near the middle of the coach, known as the "ladies' car." When the station was called, either by the conductor or a negro porter, he left his seat and went to the vestibule at the front end of the car, where he met and had some conversation with the conductor, who was standing in the vestibule on his left, with his lantern on the floor at his feet. As appellee was thus situated the negro porter, who was also in the vestibule, stepped down therefrom and said, "All out for Sparta," and when he got down on the station platform, or as he was stepping from the bottom step of the platform, again called out, "All out for Sparta." Appellee thereupon stepped down from the steps of the vestibule, and was, by the motion of the train, thrown to the platform. Appellee also testified that, when he (appellee) stepped off the car, he did not know whether it was in motion, but that the porter was on the ground, apparently, holding with his left hand to the railing of the car platform, and, although it was very dark, was without a lantern. The conductor, he thought, was still in the vestibule, and at a distance of from 10 to 12 feet from him at the time he attempted to alight.

McCormack and Coates, two other passengers on the train, testified that, when Sparta station was announced, they came out of the smoking car to the rear platform or vestibule thereof, and saw appellee standing in the vestibule of the other car. They, too, heard the porter as he stepped, or was in the act of stepping, from the vestibule of the car to the station platform, say, "All out for Sparta," saw appellee step or fall from the car steps to the station platform before the train stopped, and themselves safely stepped from the car immediately afterwards, while it was still slowly moving. These witnesses, and all others introduced on the trial for appellee, testified as to the darkness of the night, that the porter had no lantern, and that there were no lights on the station platform or at the place where appellee fell.

Harris, the negro porter, testified for appellant that, when the train got to Sparta, he was in the front end of the car in which appellee was riding, engaged, by order of the conductor, in sweeping; that he did not call out the station, get off the car ahead of appellee or see him get off or fall, and was not on the depot platform at Sparta until after appellee was injured.

The flagman of the train, Buckholdt, testified that it was he who got off the train at Sparta ahead of appellee; that, when he got off the train, he had his lighted lantern with him, and, seeing that appellee was about to follow him before the train had come to a stop, he told him not to get off, but that appellee persisted in doing so, and thereby fell. The witness further testified that he had hold of the railing of the car and tried to catch appellee as he fell, but, failing to do so jumped over him, by which time the train had stopped. The witness waited until the other two passengers, McCormack and Coates, got off, then went to appellee and asked him if he was hurt, to which he replied that he had broken his arm. Thereupon witness got upon the train, which had started, and informed the conductor that appellee had been injured, following which the conductor immediately stopped the train the second time, went back to where appellee was, took his name, and made inquiry as to his injuries, and the manner of his receiving same. On cross-examination the flagman admitted he called, "All out for Sparta," as the train was pulling into that station, but said that he made no such call as he stepped off the train or after he got on the station platform.

Thompson the conductor, testified that as the train approached Sparta Buckholdt, the flagman, signaled the engineer to stop, and walked through the car from the rear to the front several times, calling "Sparta" a...