Louisville & E.R. Co. v. Vincent

• Decision Date: 17 October 1906
• Citation: 96 S.W. 898
• Parties: LOUISVILLE & E. R. CO. v. VINCENT.
• Court: Kentucky Court of Appeals

96 S.W. 898

LOUISVILLE & E. R. CO. v. VINCENT.

Court of Appeals of Kentucky.

October 17, 1906

Appeal from Circuit Court, Jefferson County, Common Pleas Branch First Division.

"Not to be officially reported."

Action by Anna D. Vincent against the Louisville & Eastern Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed.

O'Neal & O'Neal, for appellant.

Willis & Todd and Johnson & Hieatt, for appellee.

NUNN J.

This is an appeal from a verdict and judgment for $2,250. The appellate corporation, the Louisville & Eastern Railroad Company, operates an electric line between Louisville and Beard Station, in Oldham county, Ky. and by section 842a of the Kentucky Statutes of 1903 is made subject to the same duties and responsibilities and given the same rights powers, and privileges which other railroad corporations have under our law. The appellee, who is a white lady about 60 years of age, became a passenger on one of appellant's cars going from Louisville to Anchorage, Ky. on November 27 1904. She was assigned to a seat in the compartment of the car set apart for white passengers. Some time after she boarded the car, three negroes were assigned to seats in the white compartment by the conductor, where they were permitted to remain until after the difficulty which terminated in appellee's injury. As the car passed Ormsby Station, one of the colored men, who was sitting in the white compartment called the conductor's attention to the fact that his ticket called for Ormsby, and that he had taken him past that station. The conductor proposed that he get off at the next station, which is called "Ridgeway." The negro protested against this because there was no depot at Ridgeway, and insisted in being carried to Lakeland or Anchorage, where he could get a car coming back to Ormsby Station. The conductor told him he could not ride to Anchorage without paying another fare. This the negro did under protest. Something that he said in protesting against the payment of the additional fare seems to have caused the conductor to decide to put him off. Appellee's testimony is to the effect that the negro said to the conductor in an ordinary tone of voice, at the time he handed him the extra nickel, "There goes a nickel into my sinking fund." The conductor states, however, that when the negro handed him the nickel he became boisterous and appeared to be drunk. The conductor then caused the car to be stopped on a fill between Ridgeway and Marritt's Station. At this time the negro was sitting, and the conductor took hold of the lapel of his coat, and attempted to eject him from the car, but in so doing by some means he fell back between the seats on the opposite side of the aisle, still holding the negro by his coat, and the latter having a like hold upon him. According to appellee's testimony, the negro was bending over the body of the conductor, being held in that position by the latter. Appellant's evidence tends to show that the negro was down on the conductor; but the testimony of neither side shows that the conductor or the negro attempted to beat or bruise each other. At this point the motorman entered the car and struck the negro twice on the head with his controller, or brake handle. The commotion which ensued created a panic among the occupants of the car, the white passengers rushing therefrom. The appellee fled from the car to the rear platform, and in attempting to alight in some way missed her footing and fell down the embankment, striking her head and neck severely enough to render her unconscious for a short while. Upon regaining consciousness, she went to the front of the car, where she was finally helped aboard of the same. At Anchorage she was taken from the car and assisted by some strangers to the Louisville & Nashville Railroad Company's depot, and carried to her home at Simpsonville, where she was confined for several months, under the treatment of a physician, and suffering from severe pains in the back of her head and neck, and was still suffering therefrom at the time of the trial--six months after her injury. She had lost 30 pounds in flesh during this time. The testimony of the appellant does not vary greatly from that of appellee, except in the particulars mentioned. The conductor admitted that he assigned the negroes to seats in the white compartment, giving as a reason therefor that he had instructions from the company to do so when the colored compartment was crowded; but he further testifies that there were at least two vacant seats in the colored compartment at the time. It also appears from his testimony that, after the negro in question was put off the car, the other two colored passengers found seats in the compartment set apart for members of their race.

Appellant's counsel urge four reasons for a reversal of the judgment: First, error in the instructions; second, misconduct of appellee's counsel in his argument to the jury; third, the improper action of the court during the trial; and, fourth, excessive damages. Of these in their order.

It is insisted by counsel for appellant that the court erred in refusing to give the following instruction offered by it "The court instructs the jury that it was the duty of the conductor in charge of the defendant's car, at the time and place complained of in the petition, to preserve good order among the passengers thereon; and if they believe from the evidence that the said conductor, while discharging said duty in good faith, was suddenly and violently assaulted by one of the passengers, and was thereby placed, or apparently placed, in imminent peril of great bodily harm, or loss of life, and that in order to save him from such injury or harm, then or there threatened, or about to be done, the motorman of the defendant struck or took hold of said passenger so assaulting said conductor, believing same to be necessary for the protection of said conductor, and used no more force than was necessary, or apparently necessary, to free the said conductor from the danger then and there threatened, or apparently threatened to be done him, then the law is for the defendant, and the jury should so find." We are unable to perceive upon what theory of law...