Mobile & O.R. Co. v. Reeves

• Decision Date: 26 April 1904
• Citation: 80 S.W. 471
• Parties: MOBILE & O. R. CO. v. REEVES.
• Court: Kentucky Court of Appeals

80 S.W. 471

MOBILE & O. R. CO. v. REEVES.

Court of Appeals of Kentucky.

April 26, 1904

Appeal from Circuit Court, Ballard County.

"Not to be officially reported."

Action by Ollie Reeves against the Mobile & Ohio Railroad Company. From a judgment for plaintiff, defendant appeals. Reversed.

Lansden & Leek and Corbett & White, for appellant.

J. B Wickliffe and J. H. Tharp, for appellee.

SETTLE J.

This is an appeal from a verdict and judgment of $400 recovered against the appellant, Mobile & Ohio Railroad Company, by appellee, Ollie Reeves, in the Ballard circuit court. It was averred in the petition that she and her husband, having purchased of appellant tickets which entitled them to ride on its passenger train from Laketon to Wickliffe, Ky. a distance of nine miles, were standing on the depot platform at Laketon awaiting the coming of the train and that when it arrived at the station appellant's servants in charge thereof, instead of stopping it, as it was their duty to do, in order that appellee, her husband, and child might get thereon, only reduced its speed sufficiently to permit the conductor to jump off, which he did, and inquired of appellee if she wished to get on, and, upon being answered by her in the affirmative, he maliciously and wrongfully cursed, abused, and jerked her about, refused to let her get aboard the train, and caused it to leave without her; that she was at the time enceinte, and by reason of the abuse and maltreatment of the conductor, as well as his negligent failure and that of appellant's other servants in charge of the train to stop it long enough for her to get thereon, she was put to great inconvenience, and subjected to much physical and mental pain, whereby she was damaged in the sum of $2,000. The answer of appellant specifically denied the averments of the petition, and, in addition, averred that the train did stop on the occasion referred to in the petition, and did not start again until a sufficient length of time had elapsed to enable all persons at the station or near at hand to get upon it, who were desirous of doing so that the conductor and train porter were on the platform ready to assist appellee or others to get on the cars, but she did not attempt to get on the train, or signify a desire to do so; that the conductor did not curse, abuse, or use any improper language to appellee, or jerk or throw her about, or take hold of, or otherwise mistreat her. Upon the trial appellee introduced but two witnesses besides herself. Her own testimony in the main sustained the averments of the petition--that is, she stated that the train did not stop when it reached Laketon, though it did check up enough for the conductor to get on the platform; that he came to her and asked if she were going, and she told him yes, if the train stopped; that he then said he was behind time, and took her by the arm, and told her, if she was going to get on, to do so, to which she replied that she would not until the train stopped; that he then said to her she was a damned crank, and he could not fool with her any more, but would have to go on. She caught hold of the train, but did not get on it, as it was still moving. She further testified that when the conductor took hold of her he shoved her back, and pushed her towards the train until she took hold of a post, whereupon he jumped upon the train and left, and that from the pain and excitement of her encounter with him she was confined to her bed from the time she got to her sister's that day until 9 o'clock the following morning. The next witness introduced in her behalf was John Tolliver, who testified that he saw her standing at the place on the platform where passengers usually get on the train; that the train stopped, but not more than a minute, if that long; and appellee tried to get on it, but it pulled out and left her. He did not see her catch hold of the train, nor did he see the conductor take hold of her. On cross-examination the witness further testified that he was close to appellee while the train was there, and a part of the time only five or six steps from her, but did not testify that he saw the conductor mistreat or abuse appellee. The only other witness introduced by appellee was her sister, Mattie Bass, who was not at Laketon when appellee failed to get on the train, but who testified that appellee came to her house that day, and was sick for perhaps a week; that she thought she was threatened with a miscarriage, which did not occur. Eleven witnesses were introduced by the appellant, all of whom testified that the train did stop on the occasion in question. Several of them said it was a very brief stop; some of them that it stopped twice, but each stop was short. At the first stop a man got off the train; at the second stop appellee's husband, with their child, succeeded in getting on, but, ascertaining immediately after the train left the station that his wife was not aboard, at his request the train was stopped by the conductor 200 or 300 yards from the station, and he and the child permitted to get off, after which they rejoined appe...