Maysville & B.S.R. Co. v. Willis

• Decision Date: 31 October 1907
• Citation: 104 S.W. 1016
• Parties: MAYSVILLE & B. S. R. CO. ET AL. v. WILLIS.
• Court: Kentucky Court of Appeals

104 S.W. 1016

MAYSVILLE & B. S. R. CO. ET AL. v. WILLIS.

Court of Appeals of Kentucky.

October 31, 1907

Appeal from Circuit Court, Greenup County.

"Not to be officially reported."

Action by Ottis Willis, by his next friend, against the Maysville &amp Big Sandy Railroad Company and another. From a judgment for plaintiff, defendants appeal. Affirmed.

W. H Wadsworth, J. G. Wadsworth, and Le Wright Browning, for appellants.

A. D Cole and W. T. Cole, for appellee.

CARROLL J.

This is the third appeal of this case. The former opinions may be found in 85 S.W. 716, 27 Ky. Law Rep. 459, and 92 S.W. 604, 29 Ky. Law Rep. 178. On the last trial a judgment was rendered against appellant for $1,000, and a reversal is asked for several reasons that will be pointed out in the course of the opinion.

Appellee was severely injured by being hit with a lump of ice kicked from a passing train by a brakeman. An effort was made by appellant to show that appellee was in the habit of jumping on moving trains, and that he was near the train for the purpose of getting on it when struck. It has been frequently ruled that evidence of habit in cases of this character is not competent. Lexington Ry. Co. v. Herring, 96 S.W. 558, 29 Ky. Law Rep. 794. But it is attempted to make this evidence admissible upon the theory that it illustrated whether or not appellee at the time he was injured was properly using the street he was standing on or was a wrongdoer therein; the argument being that, if he was on the street for the purpose of jumping on the passing train, he was a trespasser or wrongdoer, and hence not protected by the rules of law that might be invoked in favor of a person rightfully occupying the street. There is no evidence of any contributory negligence or act of wrongdoing on the part of appellee. He was quietly standing in the street, where he had the right to be, and his conduct did not indicate that he was in the act of getting on the train, or that he was in any other respect conducting himself in an improper or negligent manner. The question was asked appellee, "If you had not walked up to the train, or had stood where you were when the engine passed you, would you have been hit by the ice or injured?" and an avowal made that, if permitted to answer, he would say that "if he had stood where he was when the engine passed him he would not have been hit by the ice or injured." It is totally immaterial where appellee stood, or what movements he made after the engine passed him. He had a perfect right to move his position, and the fact that in moving he came nearer to the train does not indicate negligence on his part, as there is no pretense that he was injured by being struck by the train. Nor does it follow, from the avowal made that he would answer the question, "Hadn't you made up your mind to jump on that train?" "I don't know; I may have," that he was a trespasser or not entitled to protection from the negligent and wrongful acts of appellant's employé.

The jury were instructed that if the agent "negligently threw or kicked" the lump of ice from the train, injuring appellee, they should find for him in damages. It is objected that the word "threw" had no place in this instruction, as it was entirely unsupported by the evidence, which showed that the ice was kicked from the train. In the connection these words were used there is no substantial difference between them; and it would be exceedingly far-fetched to say that the jury were misled, or the rights of the appellant prejudiced, by the insertion of the ward "threw," when the evidence showed that the lump of ice was kicked from the train.

The instructions authorized the jury, if they believed from the evidence that appellee was permanently injured, to allow him such sum as would fairly compensate him for any permanent reduction, if any, of his power to earn money. The petition charged that appellee "was greatly or probably permanently injured"; and it is argued that this is not an averment that he was permanently injured, and that there can be no recovery for a permanent injury, unless the pleading specifically states that the plaintiff was permanently injured. Although we know no rule of pleading or practice that requires a plaintiff in an action to recover damages for personal injuries to state with particularity the nature of the injury he has sustained, as that his head, or leg, or arm was injured, and, if this particularity was indulged in, the plaintiff would be confined in his evidence to the specific injuries set out, and could not recover for others, as he might do under a general averment, yet it is proper...