Louisville Ry. Co. v. Park

• Decision Date: 09 February 1895
• Citation: 29 S.W. 455,96 Ky. 580
• Parties: LOUISVILLE RY. CO. v. PARK.
• Court: Kentucky Court of Appeals

29 S.W. 455

96 Ky. 580

LOUISVILLE RY. CO. v. PARK.

Court of Appeals of Kentucky.

February 9, 1895

Appeal from circuit court, Jefferson county.

"To be officially reported."

Action by Ruth Park against the Louisville Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Humphrey & Davie, for appellant.

Walter Evans, for appellee.

GRACE J.

This is an appeal by the Louisville Railway Company from a judgment rendered by the Jefferson circuit court (common pleas division) against it, in favor of Ruth Park, for the sum of $3,000, in damages for personal injuries sustained by appellee while a passenger on the cars of that company, and in alighting therefrom. Appellee states in her petition that appellant was a common carrier of passengers, to and from certain points specified, along its line of railway, in the city of Louisville, and appellee being a passenger on the cars of appellant, along the course of its railway, and having paid her fare as such, and reaching her destination and having given the usual signal, the car stopped, and that in getting off said car, she slipped and fell on the steps of said car, though using due diligence and care on her part and without fault on her part, and that thereby she sustained serious personal injury; and she so slipped and fell on plaintiff's car by reason of negligence and carelessness of appellant in suffering and permitting the step of said car from which she slipped and fell to become and remain greatly worn on the outer edge of same, and in the negligence of said road, its agents and employés, in suffering and permitting the mud to accumulate in considerable quantity on said step and, by reason of constant use by passengers, to become hard, and, being thus packed hard, was by the rain of the day made slippery, whereby she fell. The answer of appellant controverts each of these allegations, as charged by appellee; denies that the step of its car was much worn, or worn at all, so as to make it dangerous, and denies that it permitted any accumulation of mud on said step, other than such as necessarily accumulated on same, along its line of travel and between its regular termini at the eastern and western ends of its road; denies any negligence whatever on the part of its agents, employés, or any or either of them; denies that appellee received or sustained any injuries; denies that she exercised due care and prudence on her own part; denies that the rear step of said car, where appellee slipped and fell, was in an unsafe condition; denies that she received her injuries by reason of either or both the matters complained of by her in her petition; and, finally, affirms that her injuries, if any, were the result of her own negligence and carelessness. On the issue thus made up, after one mistrial, the parties again went to trial, and on the 14th of October, 1893, the jury found for appellee in the sum before stated, whereon, judgment being rendered, and motion for a new trial being made and overruled, the railway company prosecute this appeal.

Of the evidence, it is sufficient to say that both parties introduced proof tending to sustain their respective contentions, as made by their pleadings, and whereon issues had been joined, and after a careful examination of same we are satisfied that the finding of the jury in this case is not within the line wherein this court has felt authorized, under the law, to set aside verdicts of juries for want of sufficient testimony to sustain same.

The only other question, therefore, that need be examined for error, is as to the instructions given by the court, and whether those given at the instance of the appellee, or by the court of its own motion (all being excepted to by appellant), contained a correct exposition of the law of the case, and were not prejudicial to the material rights of appellant. There were seven instructions given by the court and, without copying the same in full, it may be said, briefly, that, in so far as they or either of them authorized any finding for appellee, they were carefully based upon the two matters complained of by appellee in her petition: One, that the step of the car from which she slipped and fell was worn off on the outer edge; and the other, that, by reason of the accumulation of mud on said step, so as to render same more dangerous than it otherwise would have been, and that these two things concurring, or that either alone existing, and that same was so suffered to remain and exist by reason of the negligence of appellant, and if, in addition, by reason of same, appellee, using herself due care and caution, nevertheless slipped and fell, and so received the injuries complained of, then the company was liable,-appellee being careful, in the instructions asked of the court, to define the degree of care and diligence required of said company, in reference to the two things complained of, one the inherent defect in the step, by reason of its worn condition, and the other by reason of the excessive accumulation of mud on said step. The degree of care and diligence required of the railway company in the general definitions given on this subject were that said company should use the "utmost degree of care and diligence," or the highest degree of practical care and diligence, which prudent persons are accustomed to use, in defendant's business, and consistent with the mode of transportation adopted by it. And, further, defining the term "negligence" or "negligently," whenever used in the instructions, to mean any failure to use the care and diligence defined above, the sixth instruction given by the court, and at the instance of appellee,...