Louisville & N.R. Co. v. Kemp's Adm'r

• Decision Date: 18 September 1912
• Parties: LOUISVILLE & N. R. CO. v. KEMP'S ADM'R. [d]
• Court: Kentucky Court of Appeals

149 S.W. 835

149 Ky. 344

LOUISVILLE & N. R. CO. v. KEMP'S ADM'R. ^[d]

Court of Appeals of Kentucky.

September 18, 1912

Appeal from Circuit Court, Jefferson County, Chancery Branch, Third Division.

Action by Annie B. Kemp, prosecuted after her death by her administrator, against the Louisville & Nashville Railroad Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Chas H. Moorman, Benj. D. Warfield, and James J. Donahue, all of Louisville, for appellant.

O'Doherty & Yonts, of Louisville, for appellee.

HOBSON C.J.

On August 23, 1909, Mrs. Annie B. Kemp was a passenger on a train of the Louisville & Nashville Railroad Company from Pendleton to La Grange, Ky. and as she was leaving the train at La Grange, was thrown to the floor of the car, sustaining injuries, to recover for which she brought this suit against the company. During the progress of the action she died, and the action, which sought a recovery for her pain and suffering, was revived in the name of her administrator. On the trial of the case there was a verdict and judgment in favor of the plaintiff for $3,000. The defendant appeals.

The proof for the plaintiff, which seems to have been accepted by the jury, showed in brief these facts: Mrs. Kemp was sitting in the seat next to the door, and, when passengers for La Grange were called to get off, got up and started out. Just as she got to the door, or near it, the train gave a sudden violent motion forward, and then suddenly stopped. By the jerk she was thrown to the floor, striking her hip against something as she fell, and giving her a violent internal jar. The brakeman assisted her up and took her to a seat. She was taken on to Louisville, where she was met by the company's physician, who went with her to her sister's and there examined her. On August 25th she had a miscarriage, and some days later her womb was curetted and the placenta removed. She continued at her sister's for some weeks under the care of physicians, and then returned to her home, but was never well. That fall a cancer of the womb developed, and she died the following winter. Up to her injury on the car she was a healthy, rosy-cheeked woman, 39 years old, weighed 165 pounds, and was an invalid from that time until her death, suffering intensely. On the other hand the proof for the defendant showed there was no violent or unusual jerk of the train. Mrs. Kemp, about a month before had received an injury at home, and was in a weak condition to travel on the train, and the troubles which she afterwards suffered from were due to these causes, and not to her fall on the train; the cancer, according to this proof, antedating the fall in the car.

It is insisted that the court erred in refusing to instruct the jury peremptorily to find for the defendant, and that the verdict is palpably against the evidence; but we cannot sustain either of these contentions. It is manifest that the woman was thrown violently to the floor of the car. The character of her fall sustains the testimony for her as to the jerk of the train, for no other cause for such a fall appears in the record. She was evidently badly hurt, because she was taken on to Louisville on the train, although her ticket was for La Grange, and the company's doctor was wired to meet the train. She was as could be seen from her appearance, not in a normal condition after the fall. That she suffered a miscarriage two days later, and that this was due to the fall, is equally established by the plaintiff's evidence; for, in view of the proof for her as to her good health, it is hard to believe this miscarriage could have been due to an injury she received at...