Monehan v. South Covington & C. St. Ry. Co.

• Decision Date: 03 March 1904
• Citation: 117 Ky. 771,78 S.W. 1106
• Parties: MONEHAN v. SOUTH COVINGTON & C. ST. RY. CO.
• Court: Kentucky Court of Appeals

78 S.W. 1106

117 Ky. 771

MONEHAN v. SOUTH COVINGTON & C. ST. RY. CO.

Court of Appeals of Kentucky.

March 3, 1904

Appeal from Circuit Court, Campbell County.

"To be officially reported."

Action by June Monehan, by his next friend, against the South Covington & Cincinnati Street Railway Company. From a judgment for defendant, plaintiff appeals. Affirmed.

C. L Raison, Jr., Geo. H. Ahling, and A. M. Caldwell, for appellant.

L. J Crawford, for appellee.

BARKER J.

The appellee is a corporation operating an electric railway over the streets of the city of Newport, Ky. The appellant, at the time of the injury of which he complains, was between six and seven years of age. At the intersection of Eleventh and Patterson streets, in the city named, one of appellee's cars had stopped for the purpose of receiving and discharging passengers. On the rear platform of the car were steps, so arranged that passengers could get on or off from either side; but appellee only permitted this to be done on one side at a time, and, for the purpose of preventing ingress and egress to and from the car on more than one side, it had a small iron wicket gate across the side not in use. This was movable, so that it could be transferred from one side to the other, as the necessities of the case required. Appellant, and a companion about the same age, while the car was standing at the intersection mentioned, got upon the lower step of the side of the rear platform which was not being used for the purpose of taking on or letting off passengers, and, taking hold of the iron gate with their hands, stood on the step until the car started. The car seems to have soon attained a rapid rate of speed, and appellant was jolted off, falling into the street and receiving injuries about the head, to recover damages for which this action was instituted. Upon the trial of the case, after the close of appellant's (plaintiff's) testimony, the court, on motion, awarded appellee (defendant) a peremptory instruction to the jury to find for it, which was done; and of this, appellant is here complaining.

The question involved is whether or not, under appellant's own testimony, appellee owed him any duty other than to avoid injuring him, if that could have been done, by the exercise of ordinary care, after his danger was discovered. It is not pretended that appellant was a passenger upon the car, nor can it be denied that he was a trespasser. The evidence does not show that the conductor, who was appellee's agent in charge of the car, saw him; but it is contended that the officer, by the exercise of ordinary diligence, could and should have seen him before he received his injury, and have prevented it, and this question, he claims, should have been submitted to the jury. Upon this claim arises the crucial question of this case-- whether or not appellee owed appellant any active duty in order to discover his peril. If so, then the peremptory instruction should not have been granted. In favor of this proposition, appellant's counsel cites two cases: L. & N. R. Co. v. Thornton (Ky.) 58 S.W. 796, and Vanarsdall's Adm'r v L. & N. R. Co. (Ky.) 65 S.W. 858. In the first of these, the court said: "The theory upon which this case is based, and the recovery had--for it is carried into the instruction given supra--is that appellant owed to appellee a duty to prevent him getting off the moving train after those agents knew or had reasonable grounds to believe he was about to jump from the moving train. We are of opinion that the instruction, supra, given, is erroneous. There can be no negligence in failing to do unless there was a duty to do. Appellee, a boy seventeen years of age, and of reasonable intelligence, as shown by his testimony, is on a freight train by invitation of the fireman. He is not a passenger. The appellant owed him no contract duty. The train is not engaged in carrying passengers. Under these circumstances, it is clear that appellee was a mere licensee, if not a trespasser, and appellant owed him no duty, unless his danger was discovered in time to have prevented an injury by some agent of appellant. Dalton's Adm'r v. L. & N. R. Co. (Ky.) 56 S.W. 657, and cases cited." In the second of these cases, the facts were these: The decedent, Mary Vanarsdall, was a little girl, 12 years of age. At the time of the accident she was walking over one of appellee's railroad bridges. Before she could get off, she was run over and killed. In the opinion this court said: "It must be conceded that the intestate was a technical trespasser, or, in other words, she had no lawful right to use the bridge as a passway, and that appellee was under no obligations to look out to see if she was upon the bridge. But it is also a well-settled rule of law that if the defendant, its agents or employés in charge of the train, discovered the peril or danger of the intestate, it was its duty to use all reasonable efforts to avoid injuring her, and, if they failed so to do, the plaintiff would be entitled to recovery. If, however, the defendant used all reasonable efforts to avoid injury after discovering her peril, the verdict should have been for the defendant." We are not able to recall any opinion of this court wherein the opposite principle to that contended for by appellant has been more clearly or definitely...