Louisville Railway Co. v. Potter

• Decision Date: 27 April 1917
• Parties: Louisville Railway Company v. Potter.
• Court: Kentucky Court of Appeals

175 Ky. 258

Louisville Railway Company v. Potter.

Court of Appeals of Kentucky.

Decided April 27, 1917.

Appeal from Jefferson Circuit Court (Common Pleas Branch, Second Division).

STRAUS, LEE & KRIEGER and HOWARD B. LEE for appellant.

L. A. HICKMAN for appellee.

OPINION OF THE COURT BY CHIEF JUSTICE SETTLE — Reversing.

In this action the appellee, Eva Potter, recovered of the appellant, Louisville Railway Company, in the court below, a verdict and judgment of $552.50 damages for personal injuries sustained by her in attempting to alight from one of its cars at Fourth and N Streets in the city of Louisville; in doing which her dress caught, as alleged, on some part of the car and caused her to fall violently to the ground.

The negligence complained of as causing her fall and consequent injuries is thus stated in the petition:

"She states that the part of the car upon which her dress caught was negligently constructed and in a defective condition, and that she was caused to fall, as aforesaid, by reason of the gross negligence of defendant and defendant's employees in charge of said car, in using a car so constructed and in a defective condition."

The answer of appellant denied that the car was in a defective condition; that it was negligently constructed; that by reason thereof appellee was caused to fall, or that she was injured by the fall. The refusal of the circuit court to grant appellant a new trial resulted in this appeal.

The errors assigned for the reversal of the judgment are: (1) That the court should have instructed the jury peremptorily to find for the appellant; (2) That the verdict was unauthorized by, and is flagrantly against the evidence. It appears from the bill of evidence found in the record that appellee, her two children, and sister-in-law, Alice Potter, boarded the car together at a suburb of Louisville called Hazelwood, and that when the car arrived at Fourth and N Streets they left it to go to their home on the latter street. The accident can better be described in appellee's own language, quoted from her testimony:

"A. Well, we got on there at Hazelwood about twenty-five minutes until two, and came to Fourth and N, and there I rang the bell before I got there, to get off, and I helped the two children off and I got down as far as the step and was aiming to make my step on to the ground and I found my skirt was fastened in the corner of the car; there was something it seemed to be sticking out there that caught my skirt, and the instant I looked around the skirt tore loose and that threw me out of the car on the ground, on my right knee, my whole weight went on my right knee and then I pitched over or fell over on my right side. Q. Did you see what it was that was catching your dress? A. No, sir; I couldn't tell what it was; I could see there was something under the skirt. Q. What prevented you from seeing it? A. The skirt was over whatever it was holding to the skirt; the skirt lay there."

At this juncture a skirt was shown appellee which she identified as the one worn by her at the time of the accident and this skirt she exhibited, containing the rent claimed to have been then made. Resuming her testimony, the witness further said:

"A. I stepped out this way and found my skirt was hooked over something. Q. Show them how that appeared to you — that hook on the skirt; just show them with your finger how that appeared. A. This is the way it was fastened down on the car, that was sticking up there (indicating); I could see the print of it this way, as I aimed to get off of the car; I had both feet down on the step and I aimed to make my step to the ground and I found my skirt was fastened and looked back to see what was the matter and there the skirt, something was sticking out this way in the skirt (indicating). The court: Where was the `something?' A. Right at the platform at the corner of the car; I don't know what it was; it was right on the corner of the car. The Court: The side of the car? A. Right at the corner where the step runs up this way in this car and right in this corner, and right at the floor of this little platform is where this skirt was fastened (indicating). Q. Could you tell whether it was on the platform or on the side of the car? A. Well, I don't know; it was so close in the corner I couldn't tell whether it was on the side of the car or whether it was at the floor."

On cross-examination appellee testified, in part, as follows:

"Q. As you came out you noticed nothing the matter with the car, did you? A. No, I didn't see anything. Q. And you couldn't find anything the matter with the car, could you? A. I could see my dress was caught on something of the car. Q. You didn't know what it was? A. I couldn't see what it was. Q. Right there at the time didn't your sister-in-law say to you, `I stepped on your skirt; it is my fault.' A. No, sir; she asked me if she did step on my skirt. Q. Didn't she know whether she stepped on your skirt or not? A. I didn't know whether she did or not; she asked me that."

The sister-in-law, Mrs. Alice Potter, testified in substance that she stepped from the car immediately behind appellee and saw her fall, but did not know what caused her to do so. She admitted, however, that at the time of the accident she said she must have stepped on appellee's dress and, in the excitement resulting from the accident, then thought she had done so; but at the time of the trial expressed the opinion that she had not stepped on appellee's dress, claiming she was in the car door and appellee on the steps when she fell. Both this witness and appellee also testified that they saw nothing upon or projecting from the side, platform floor or steps of the car upon which appellee's dress could have caught or been held.

Appellee's two children, present at the time of the accident, being too young to testify understandingly, were not introduced as witnesses; and the remaining witnesses introduced in her behalf only testified as to the character and extent of her injuries.

The evidence introduced by appellant was furnished by Chas. F. Bush, its conductor in charge of the car from which appellee fell; John Schalda, a passenger, and Edward Ater, an employee of appellant, also a passenger on the car. These three witnesses testified from an inspection made by them of the car immediately following the accident, that it was absolutely free of defects; and that there was nothing like a projection or other object on or about the walls, platform or steps of the car, upon which it would have been possible for appellee's skirt to catch or hang. With respect to what happened at the time of the accident, Bush on direct examination, testified as follows:

"Q. What happened there, Mr. Bush? Just in your own way tell the jury. A. Well, we were coming to Fourth and N Streets and made the usual stop for passengers to get off; as the car stopped, I opened up my exit door and two little children got off first, and as they got off, the lady (appellee) she came out to get off right after them, and she stepped out of the car on to the rear platform and went to step on the step and her dress stayed on the rear platform and this other lady (Alice Potter) following her — in some way she stepped on this lady's (appellee) dress and she fell to the street. Q. What did the lady there, who stepped on the other's dress — did you hear her say anything? A. I jumped out to help this other lady up and as I got out, she got up by the time I got out; I asked her if she was hurt and she said: `No;' I said, `Would you sign a card for me?' but she said, `It wasn't your fault; it was the other lady's fault, she stepped on my dress; she stepped on my dress and it was her fault and wasn't yours.' Q. Did the big woman who came behind, did you hear her say anything? A. Well, she said she stepped on this other lady's dress."

On cross-examination Bush further testified as follows:

"Q. Isn't it a fact her dress hung on the platform and on the side of the car and that caused you to notice it? A. No, sir. Q. That is not a fact? A. No, sir; it is not a fact. Q. But, you did notice it immediately following. A. The other lady stepped on her dress. Q. Isn't it a fact that you made no careful examination of that platform or that side of the car? A. No, sir. Q. You just casually looked at it as you had been doing all that day and made no particular examination? A. No, sir; I paid particular attention to it. Q. When did you make this particular examination? A. Before we started up again. Q. What caused you to make a particular examination? A. If anything like that happens, why I always pay attention to it, and close attention to see. Q. As I understand it, both she and the lady with her told you the lady tramped on her dress and that caused her to fall. A. They both said it. Q. You had no reason to believe there was anything wrong with the car, did you? A. I usually look anyway to see. Q. You just looked anyway? A. Yes. Q. You didn't believe it when they said the cause of it was the lady tramping on her dress? A. I know she tramped on it for she was still standing on it. A. You saw her standing on the dress? A. Yes, sir."

John Schalda, who was standing on the rear platform of the car and did not see appellee until after her fall, because of the wooden partition intervening between that part of the platform where he stood and the entry between the exit door and steps by which she left the car, but later from the steps obtained a view of the parties, testified as follows:

"A. The lady (appellee) said — she turned to the lady following her and she said, `It was your fault that I fell.' Q. What else did she say? A. The conductor asked her for her name and she said: `I am not hurt.' I don't know whether she gave her name or...