Louisville & N. R. R. Co. v. Wilson

• Decision Date: 06 March 1907
• Citation: 124 Ky. 846
• Parties: Louisville & N. R. R. Co. v. Wilson
• Court: Kentucky Court of Appeals

Page 846

124 Ky. 846

Louisville & N. R. R. Co. v. Wilson

Court of Appeals of Kentucky.

March 6, 1907.

Appeal from Barren Circuit Court.

SAMUEL E. JONES, Circuit Judge.

Judgment for plaintiff. Defendant appeals. Reversed.

BENJAMIN D. WARFIELD and SIMS, DUBOSE & RODES for appellant.

J. LEWIS WILLIAMS for appellee.

OPINION OF THE COURT BY JUDGE SETTLE — Reversing..

This is an appeal from a judgment of the lower court entered upon a verdict awarding appellee $300 damages for injuries sustained in alighting from appellant's passenger train. The recovery was had upon the ground that appellant's agents in charge of the train were guilty of negligence in starting it without notice to appellee, and without reasonable time or opportunity for her to get off the train before it got in motion. The answer contained a traverse and pleaded contributory negligence on the part of appellee; the latter plea was denied by reply. The accident occurred at Cave City, where appellee had gone with her two grandchildren to put them aboard appellant's train that they might be carried to their mother in Louisville. According to appellee's own testimony, when she got to the depot with her grandchildren, she bought of appellant's ticket agent, Curd, a half-fare ticket for one of them, but got no ticket for the other, as, under appellant's rules, it was entitled to free transportation. When the train arrived and stopped at Cave City, appellant took the children into the apartment of the coach reserved for colored passengers, where they belonged, but, finding the seats taken therein, she led the children into the smoker's section of the coach, and, upon reaching the first vacant seat, discovered that the train was in motion, whereupon she at once deposited their baggage, consisting of two baskets and a parcel, and leaving the children, hastened to the platform of the coach, from a step of which, though the train was still in motion, she jumped to the depot platform, thereby breaking the bones of one of her ankles.

It is not apparent from the evidence that the children were incapable of entering the coach and finding seats without assistance, for they had frequently traveled from Louisville to their grandmother's and back to Louisville, but the evidence did conduce to prove that they were unable to carry into the car the large quantity of baggage accompanying them. We may, therefore, assume that it was necessary for appellee, or some one, to assist them upon the train with it, and that she had the right to enter the coach for that purpose, but that fact was not, of itself, sufficient to make appellant responsible for her injuries. We find the law thus announced in Moore on Carriers, p. 584: "There is no obligation upon the carrier to hold its train until every person not a passenger leaves the same, irrespective of the time of the stop made at the station. It is the duty of one who has assisted a passenger on board, if the train starts before he has had time to get off, to remain until he can make known his wish to get off, and, if he alight while the train is in motion, he does so at his own risk, and cannot maintain an action against the carrier for injuries received, unless he shows that he exercised due care and the carrier was negligent. It is not negligence for the carrier to start its train before such person has had time to get off, unless its servants had notice of his intention to do so." Texas Pac. R. Co. v. McGilvany (Tex. Civ. App.), 29 S. W. 67; Dillingham v. Pierce (Tex. Civ. App.), 31 S. W. 203; McLarin v. Atlantic, etc., R., 85 Ga. 504, 11 S. E. 840; Central R. R. v. Letcher, 69 Ala., 106, 44 Am. Rep. 505; Yarnell v. Kansas City R. Co., 113 Mo. 570, 21 S. W. 1, 18 L. R. A. 599; Coleman v. Georgia R. & B. Co., 10 S. E. 498; Keokuk Packet Co. v. Henry, 50 Ill., 264. In Little Rock & Fort Smith R. Co. v. Lawton (Ark.), 18 S. W. 543, 15 L. R. A. 434, 29 Am St. Rep., 48, the facts were very similar to those of the case at bar. Lawton had taken the hand baggage of a lady and child into the car, and in alighting after the train started was injured. His main contention was that the train did not stop a reasonable length of time to permit him to alight. The trial court instructed the jury that it was the duty of those in charge of the train to hold it the full length of time that was usually required for passengers to get on or off the cars at that place. In passing on this contention the Supreme court of Arkansas in part said: "But one who goes upon the train to render necessary assistance to a passenger in conformity to a practice approved, or acquiesced in, by the carrier, in its interest and upon its implied invitation as before stated, has a right to render the needful assistance and leave the car, and the railroad company, in permitting him to enter it with knowledge of his purpose, is presumed to agree that he may execute it, and is bound to hold the train a reasonable time therefor. Griswold v. Chicago & N. W. R. Co., 64 Wis. 652, 26 N. W. 101. But the duty is dependent upon the knowledge of his purpose by those in charge of the train, for without such knowledge they may reasonably conclude that he entered to become a passenger, and cause the train to be moved after allowing him a reasonable time to get aboard. The law could not, in reason or justice, impose as a duty the doing of that which, in the light of everything known to trainmen, would not appear necessary or proper, or hold that the cars should be stopped when there was no reason to stop them except a fact unknown to them. * * *" The doctrine announced in the cases supra was approved by this court in Berry v. L. & N. R. R. Co., 60 S. W. 699, 22 Ky. Law Rep. 1410. Berry, having gone into a passenger car to bid his family goodbye on their departure for Florida, attempted to alight from the train...