Louisville Ry. Co. v. Wellington

• Decision Date: 18 March 1910
• Citation: 137 Ky. 719,126 S.W. 370
• Parties: LOUISVILLE RY. CO. v. WELLINGTON. [1]
• Court: Kentucky Court of Appeals

126 S.W. 370

137 Ky. 719

LOUISVILLE RY. CO. v. WELLINGTON. ^[1]

Court of Appeals of Kentucky.

March 18, 1910

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

"To be officially reported."

Action by Rossa Wellington against the Louisville Railway Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

David W. Baird, Fairleigh, Straus & Fairleigh, and Howard B. Lee for appellant.

George Weissinger Smith, for appellee.

CLAY C.

Appellee Rossa Wellington, instituted this action against the Louisville Railway Company, to recover damages for personal injuries. The jury returned a verdict in her favor for the sum of $7,125. From the judgment based thereon, the Louisville Railway Company appeals.

The following is a brief statement of the circumstances of the injury: White City is a place of amusement, located upon the banks of the Ohio river. During the summer season it is largely patronized by the citizens of Louisville generally. During the last week of the season it is patronized by the colored people of that city. On the night of September 8 1907, appellee, Rossa Wellington, was helping her sister-in-law in conducting an ice cream stand. About 11:30 o'clock on that night she boarded a Greenwood avenue car standing in front of White City. She got on the front end of the car, and was accompanied by five or six white employés. She went into the car and took the fifth seat from the front, by the side of a negro man. The latter got up and left her the entire seat. At that moment a crowd of negroes rushed in from the rear end of the car, and a negro woman sat down beside appellee. The conduct of the negroes was disorderly. Their language was loud and foul. Some of them grabbed appellee by the arm and said: "This car belongs to us to-night." One woman said (referring to appellee): "Pull her out, drag her out." One of the negroes struck appellee. She was also thrown against the seat with some violence, and a bruise made on her side. During the trouble the conductor, according to the evidence for appellee, made no effort to protect her. The evidence for appellant is to the effect that he did all that he could in that direction. The conductor claims that he thought appellee was a colored woman, and that she was engaged in a fight with another colored woman. Finally the police were called, and they were directed by the conductor to take certain negroes off the car, and also appellee. Appellant assigns two grounds for reversal: First, error in the instruction; second, the verdict is excessive.

At the outset, however, it is insisted by appellee that this court has no right to consider the bill of exceptions because it was not filed within 60 days from the date of the judgment overruling the motion and grounds for a new trial. We deem it unnecessary to pass upon the question whether or not the bill of exceptions was, as a matter of fact, filed in time. Suffice it to say that it was filed without objection on the part of appellee, and that no motion was made, either in the court below or in this court, to strike out the bill of exceptions. That being the case, the error, if any, in failing to file the bill of exceptions within 60 days will be deemed to have been waived by appellee. Walling v. Eggers, etc., 78 S.W. 428, 25 Ky. Law Rep. 1565. It follows that we may properly consider the bill of exceptions.

It is first insisted by appellant that the court erred in giving instruction No. 1, which is as follows: "(1) If the jury believe from the evidence that the conduct of the negroes, by whom plaintiff claims to have been insulted and assaulted on the occasion in the evidence referred to, was such on defendant's car, and prior to the happening of the alleged assault, as would induce a reasonably vigilant and prudent conductor to have anticipated that such assault might be made, then it became the duty of such defendant's conductor, in the exercise of the utmost vigilance, to use all reasonable means to protect the plaintiff from indignity and assault from said negroes, and if you shall believe from the evidence that the defendant's conductor under such circumstances failed to use all reasonable means to prevent such indignity to or assault upon the plaintiff, and that by reason of such failure on the part of defendant's conductor the plaintiff sustained insult, assault, or injury from said negroes on the occasion in the evidence referred to, the law is for the plaintiff, and the jury should so find." The error relied upon is the use of the word "might" instead of the word "would." The rule applicable to such cases is pointed out by this court in Kinney v. Louisville & Nashville R. R. Co., 99 Ky. 59, 34 S.W. 1066, wherein the court said: "Out of this obligation, and the doctrine that carriers of passengers are required to use the utmost care in the management of their trains in order to prevent or avoid injury to their passengers, arises the rule that makes it the duty of carriers to exercise the highest practicable degree of care and diligence in protecting and guarding their passengers from violence and assaults, from whatever source, which may be reasonably anticipated or naturally expected to occur under the circumstances of the case and the condition of the parties. ***" It will be observed that the foregoing rule exacts of the carrier the highest practicable degree of care and diligence in protecting and guarding its passengers from violence and assaults, from whatever source, which may be reasonably anticipated or naturally expected to occur under the circumstances of the case and the condition of the parties. In...