Pack v. Camden Interstate Ry. Co.

• Decision Date: 20 June 1913
• Citation: 157 S.W. 906,154 Ky. 535
• Parties: PACK v. CAMDEN INTERSTATE RY. CO.
• Court: Kentucky Court of Appeals

157 S.W. 906

154 Ky. 535

PACK v. CAMDEN INTERSTATE RY. CO.

Court of Appeals of Kentucky.

June 20, 1913

Appeal from Circuit Court, Boyd County.

Action by H. J. Pack against the Camden Interstate Railway Company. After a verdict for the plaintiff, a new trial was granted by the trial court, in which judgment was for the defendant. Plaintiff appeals. Affirmed.

C. B Wheeler, of Ashland, for appellant.

Hager &amp Stewart, of Ashland, for appellee.

CLAY C.

On November 23, 1906, plaintiff, H. J. Pack, was injured while attempting to alight from a street car owned and operated by defendant, the Camden Interstate Railway Company, and brought this action against the defendant to recover damages. Two trials were had. On the first trial the jury returned a verdict in favor of plaintiff in the sum of $350. A new trial was granted and on the second trial the jury found for the defendant. From the judgment predicated on the verdict plaintiff appeals, and brings up the record of the first trial for the purpose of having reviewed the action of the trial court in awarding a new trial.

Plaintiff was a passenger, and while attempting to alight from the car on which he was riding at Twenty-First street in Ashland, Ky fell and was injured. He bases his right to recover on the fact that the car stopped at Twenty-First street, and while he was in the act of getting off the defendant negligently started the car without giving him a reasonable opportunity to get off. The allegations of the petition were denied by answer, and the answer further alleged that while the car was in motion, and before it was stopped or could have been stopped at Twenty-First street, plaintiff attempted to alight therefrom, and that this negligent act on his part was the sole cause of the injuries for which he sued.

The evidence on each trial is practically the same. According to plaintiff's evidence, he, on the payment of his fare, requested the conductor on the car to stop the car at Twenty-Second street. As the car approached Twenty-Second street, plaintiff started towards the door of the car to get off. The car did not stop there. Plaintiff, while still standing, asked the conductor to stop the car at Twenty-First street. The car stopped there. Mr. Nichols, who was with plaintiff, first got off the car in safety. While the car was still standing, plaintiff attempted to get off. While on the steps and in the act of getting off, the car suddenly started without giving him a reasonable opportunity to alight. Plaintiff was thrown from the car steps to the pavement and injured. Some three or four witnesses testified to these facts. On the other hand, several witnesses testified that plaintiff got off the car while it was in motion and before it was or could be stopped at Twenty-First street.

On the first trial the court, by instruction No. 1, told the jury in substance, that it was the duty of the defendant, its agents and servants in charge of the car on which plaintiff was riding as a passenger, to exercise the utmost care for plaintiff's safety, and that if they believed from the evidence that they failed to observe such care, and by reason thereof plaintiff was injured, the law was for plaintiff, and the jury should so find, unless they believed from the evidence that plaintiff was guilty of contributory negligence as defined in instruction No. 3. On the second trial the court, in lieu of instruction No. 1, told the jury that if they believed from the evidence that the car was stopped at Twenty-First street for the purpose of allowing passengers to alight therefrom, and while it was stopped, plaintiff, while exercising ordinary care for his own safety, attempted to alight therefrom, and the car was started in motion before plaintiff had a reasonable opportunity to leave the car, and he was thereby injured, they should find for the plaintiff. The first part of instruction No. 2 given on the second trial is the usual instruction on contributory negligence. In addition to this instruction the court further told the jury that if they believed from the evidence that plaintiff, on the occasion in question, attempted to alight from the defendant's car before it arrived at or reached...