Louisville Ry. Co. v. Dott

• Decision Date: 18 December 1914
• Citation: 161 Ky. 759,171 S.W. 438
• Parties: LOUISVILLE RY. CO. v. DOTT.
• Court: Kentucky Court of Appeals

171 S.W. 438

161 Ky. 759

LOUISVILLE RY. CO. v. DOTT.

Court of Appeals of Kentucky.

December 18, 1914

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

Action by Albert Dott against the Louisville Railway Company. From a judgment for plaintiff, defendant appeals. Reversed.

Frank P. Straus and Howard B. Lee, both of Louisville, for appellant.

Popham Trusty & Roose, of Louisville, for appellee.

NUNN J.

The appellee had just become a passenger on one of appellant's street cars in the city of Louisville, when some one outside, unknown to him, threw a brick or piece of ice into the car that struck him in the face, breaking his jawbone, and causing very painful and permanent injuries. He sued to recover $10,000 general damages, and $1,329, special damages for loss of time and expense of surgical treatment. He recovered a verdict for $5,200, and the Street Railway Company appeals. As we view the case, the only question is whether there was any evidence of negligence on the part of the appellant which was the proximate cause of the injury.

About 10 o'clock one night in January, 1912, the appellee Dott, whom we shall refer to as the plaintiff, was standing at the corner of Preston and Chestnut streets, waiting for a car. Mr. Robbins, Mr. Baldes, and Mr. Ochsenhirt, a mail carrier, were also waiting at that corner for the same purpose. While so waiting, three rowdies passed, and one jostled against the mail carrier. When he warned them to be careful, they came back and got into a fight with him. Of the prospective passengers, the mail carrier was the only one involved in the difficulty, and he seems to have been getting the best of it. About the time the car came the rowdies took flight, but before the passengers could get aboard, the rowdies with five recruits renewed the attack. The plaintiff had boarded the car, paid his fare, and was standing on the rear platform, while the letter carrier and others named were getting aboard. A rowdy on the step at each side of the car was trying to enter, and it seems that others on the outside were throwing missiles aboard. It was during the progress of this fight that some one on the outside threw something through the rear of the car and hit the plaintiff, as above stated. For cause of action, it is contended that the motorman and conductor detained the car an unreasonable length of time, whereas, if they had broken away from the fight, the plaintiff might not have been injured. After averring that he hailed and boarded the car, paid his fare and became a passenger, the petition states:

"That at said time and place, an altercation and a general fight and disturbance was in progress at said intersection between a number of drunken, rowdy, and boisterous persons, who were creating violent demonstrations, hurling missiles in various directions, and creating danger to plaintiff and other passengers upon said car and to persons generally. He states that said conditions, facts, and dangers were well known to and were observed by the defendant and its agents in charge of said car at said time, and that the passengers of defendant on said car at said time requested and implored the agents of defendant in charge of said car at said time to proceed with said car and to move said car from said danger and said scene, and that said agents could have so moved said car from said scene and from said danger, and have prevented any injury to plaintiff by so doing. He states that the defendant and its agents in charge of said car, with gross negligence and carelessness, caused and permitted said car to stand at said scene and in said zone of danger for an unreasonable length of time, and negligently and wrongfully failed and refused to start or move said car with reasonable promptness and regard for the safety of plaintiff and other passengers, and with further gross negligence and carelessness allowed and permitted certain persons engaged in said fight and altercation whose names are unknown to plaintiff, to throw and hurl particles of bricks and other missiles onto, in, and against said car and against this plaintiff and his person, thereby fracturing the right side of his jaw. * * * Plaintiff states that by the exercise of proper care upon the part of defendant and its agents in charge of said car at said time, said attack upon him could have been prevented and his injury and damage could have been prevented."

As to the fighting on the arrival of the car, we reduce plaintiff's evidence to narrative form:

Three young men came along Preston street going north, and they ran into--bumped into--Mr. Ochsenhirt (the letter carrier), though they had plenty of room. They got into an argument, and the fight began. "I never had anything to do with the fight at all. They were still fighting when the car came, and I got on the car as quick as I could; stayed in the rear, because people were coming in and out at the time--it was sorter crowded. Q. How long did the conductor allow that car to stand there? A. Well, I suppose somewhere around three or four minutes; it looked a mighty long time. Q. Did anybody say anything to him during that time? A. Who? Q. The conductor? A. Yes, sir; I told him to ring off several times. Q. Why? A. I knew there was a whole lot of trouble; they were throwing bricks and ice and everything else."

As to when he was struck by the missile plaintiff testified as follows:

"Q. Mr. Dott, had any bricks hit that car or anything before you were hit? A. Well, there was a lot of racket going on there. Q. Well--A. I think so. Q. Did that make much or little noise? A. Well, it was quite an excitement there. Q. Did that make a noise that the conductor did or could hear? A. Certainly he could hear it; everybody in the car heard it. Q. After the car was first hit, did the conductor then move on, or still standing there? A. Still standing there."

On cross-examination the plaintiff testified as follows:

"Q. After the people on the car had gotten off, then you were the first one on the street to get on? A. As soon as I could get on, as soon as it stopped. Q. After you got on did you say right away to the conductor, 'Pull away from here'? A. No, sir. Q. Was the fighting going on when you stepped on? A. They had to wait until somebody else got on; that man in the fight got on. Q. The letter carrier? A. Yes, sir. Q. And still another man got on? A. Then these fellows came up closer; I said, 'You had better pull the bell.' Q. After the carrier got on, wasn't there a third man got on? A. I don't remember. Q. Was'nt there a man got his hand cut standing there on the corner? A. I don't know; after I was hit I didn't know anything. Q. Before you got hit? A. I could not say. Q. After the letter carrier got on the car, these other men rushed on there after him? A. I suppose so; after I turned my back I don't know what happened. Q. When you got on the car you turned your back to the fight? A. No, sir; it was turned in getting on. Q. Did you see one of those three rowdies, as you call them, or two of them, get on that car, and one of them had a knife? A. One got on--I don't know which one--there was one of them got on. Q. What? A. I think one got on the car. Q. Did you see a man hop on that car immediately behind the letter carrier, with a knife in his hand? A. No, sir. Q. Did you see any one get cut there on that rear platform? A. No, sir; he must have been cut the same time I was hit, I didn't notice that. Q. Did the motorman come back there, that you saw? A. I don't know; he must have come after I was hit."

As to the hurling of missiles at the car, plaintiff also testified as follows:

"Q. Now, I will ask you if it wasn't one of the men that the conductor put off that car; after he got off he then threw the rock at the letter carrier? A. I didn't see that. Q. How many rocks were thrown there that you saw? A. How many rocks? Q. Yes, at the street car? A. I didn't see any--just there was a lot of commotion there. Q. A great deal of excitement around there? A. Yes, sir. Q. All the people on the rear platform were disturbed and excited? A. I suppose the whole car of people were disturbed. Q. Did you say anything to the conductor there on that occasion? A. Told him to ring off several times."

Plaintiff introduced R. C. Kissler, who was a passenger on the front end of the car, and testifies as follows:

"Well, the conductor rang twice to go ahead, and gave three bells again, three bells in rapid succession (stop signal). I opened the folding doors, thought somebody had got throwed off the car; passing on back some one said something about a fight, and when I got about a foot of the back door somebody hit me with a brick; who it was I don't know, and that made me mad. Q. Did that come through the car? A. Yes, sir; it was a brick or a piece of ice, I stood by the money box, and there was a fellow coming on the car with a knife in his hand; he said something to me, he passed some remark, and I kicked him off the car, and another fellow was coming on in the back end, and Will Ochsenhirt kicked him off, and they started throwing again, and like here is the money box, Dott was standing over here, like anybody would pay their fare and step aside; he got hurt, and he went down to his knees, and I said, 'You stopped something;' he didn't say a word. Q. Did he seem like he would be knocked out or not? A. You can imagine--yes, sir; one of those fellows started to the front end of the car, and I went through, and Lucas, the motorman, and myself got off. One fellow hallooed, 'Don't hit those fellows.' I know that they made several passes at us; Lucas didn't make any pass--I made one. Lucas said, 'Let's get away before they do any more damage.' We got on the front end of the car, and

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