Louisville & N.R. Co. v. Reynolds

• Decision Date: 23 January 1903
• Parties: LOUISVILLE & N. R. CO. v. REYNOLDS.
• Court: Kentucky Court of Appeals

71 S.W. 516

LOUISVILLE & N. R. CO. v. REYNOLDS.

Court of Appeals of Kentucky.

January 23, 1903

Appeal from circuit court, Barren county.

"Not to be officially reported."

Action by Dudley S. Reynolds against the Louisville & Nashville Railroad Company. Judgment for plaintiff. Defendant appeals. Reversed.

J. A Mitchell, Edward W. Hines, H. M. Bruce, W. D. Hines, and B D. Warfield, for appellant.

B. H Young, L. R. Yeaman, Logan Porter, and Luther James, for appellee.

HOBSON J.

Appellee Dudley S. Reynolds, in company with a friend, drove to Glasgow Junction, a station on appellant's road, for the purpose of taking the train there, and returning to his home in Louisville. They reached the station a little after 11 o'clock at night, and, the waiting room not being open were taken to the hotel office near by. Soon after this they were informed that the train was coming, and went out on the platform to take it. The train which was approaching turned out to be a freight, and while they were still on the platform a south-bound passenger train, running very rapidly, passed the station without stopping. Appellee was standing by the side of the depot, and three or four feet further from the track than the corner of the building. A friend was standing near him. Just as the engine passed appellee was heard to groan, and his companion turned to him, finding him bending over, apparently suffering much, and asked him what was the matter. He answered that he had been struck by a missile from the train. They took him to the hotel. There were several physicians in the party on the platform. He insisted that his bladder was ruptured, but after examination the physicians found that this was not true. But he was bruised in the region of the pubic bone. It turned out that the spermatic cord was injured; also one of the testicles, which swelled up very large, and finally atrophied, shrinking until it was very small. He filed this suit against the railroad company to recover for the injury. His testimony on the trial was to the effect that the train ran through the station at the rate of 60 or 70 miles an hour; that just a little before the cab of the engine got directly opposite him he saw a large black object leave the tender between the middle and rear end of the tender; that he had no thought of its coming to him, but in less time than one could think it struck him, crushing the whole front surface of the left side and rupturing the wall of the abdomen; that the bruised muscles and nerves of the left side relaxed, and grew together on the top muscles; that he had lost complete knowledge of the movement of the left leg after standing a little while or walking a little bit, and that he cannot walk more than two or three squares without stopping. He said that the thing which struck him was a lump of coal, which was crushed into small fragments. He suffered very greatly from his injury, and lost something like 50 pounds in weight. The proof for the defendant tended to show that the train was not running so fast, but only about 40 miles an hour, and that appellee had been informed before he was struck that his train was an hour late, and that he was remaining on the platform for the reason that it was supposed that perhaps the southbound train would stop, and his companion, in that event, wished to take it. He, however, testified that he did not know that his train was late. The proof also shows that the point at which he was standing was 15 feet from the track, and it is earnestly insisted for appellant that it was a physical impossibility for a lump of coal thrown from the train to have struck him at this distance from the track; and in support of this contention we are referred to Railroad Co. v. Berry (Ind.) 53 N.E. 415, 46 L.R.A. 33, but under the evidence we think this was a question for the jury. Appellee was, in any view of the evidence, rightfully on the platform, and sustained the relation of passenger to the appellant, for he was there to take the train, and, the waiting room being closed, had a right to be on the platform. It was train time, and so he had a right to come to the station at this time to take the train; and if it be true that he was told that the train was late, being at the station, he had a right to remain there, and wait for it. Being three feet further from the track than the corner of the depot, it cannot be said that he was imprudent in standing where he was. It was the duty of the carrier to use the utmost care and skill which prudent men are accustomed to use under like circumstances for the protection of its passengers on its trains. Railway Co. v. Weams, 80 Ky. 420; Railway Co. v. Park, 96 Ky. 580, 29 S.W. 455. It was also its duty to take...