Paducah Traction Co. v. Baker

• Decision Date: 13 November 1908
• Parties: PADUCAH TRACTION CO. v. BAKER.
• Court: Kentucky Court of Appeals

113 S.W. 449

PADUCAH TRACTION CO. v. BAKER.

Court of Appeals of Kentucky.

November 13, 1908

Appeal from Circuit Court, McCracken County.

"To be officially reported."

Action by Rosa A. Baker against the Paducah Traction Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Wheeler Hughes & Berry, for appellant.

Crice &amp Ross, for appellee.

CARROLL J.

For personal injuries alleged to have been sustained by the negligence of the defendant company and its agents, by reason of which she was violently thrown or fell to the street from the car upon which she was a passenger, appellee brought this action. A trial before a jury resulted in a verdict in her favor, and the judgment on this verdict we are asked to reverse.

The petition stated appellee's cause of action as follows "She states that, when the car on which she was a passenger arrived within about one-half a block of her destination, the conductor thereon rang the bell, notifying the motorman in charge that a passenger wished to leave the car at the corner of Eleventh and Madison streets. She avers that, when the car had approached to within a short distance of the corner of said streets, it began to slacken its speed, and continued to go less rapidly until it had crossed the street and reached the point where it usually stopped for the discharge of passengers. That while the car was going at this rate of speed, and just before it reached the point where the plaintiff was to alight, the conductor on the car came around where she was sitting, and took her umbrella from her and raised it, stepping out on the step to assist her off, and just at this time, and immediately before the car reached its usual and customary stopping place on this corner, and the place where the plaintiff desired to alight, the car was going at a slow rate of speed. She arose for the purpose of stepping off the car when it had stopped, and while she was in a standing position on the car, and before she had made any attempt to alight, the conductor, who was standing on the steps, extended his hand to assist her from the car, when the car started up suddenly with a jerk and threw her to the ground with great force and violence. Plaintiff says that the sudden starting of the car with a jerk as aforesaid was caused by reason of the gross negligence and wanton carelessness of defendant's agents and servants who were in charge of said car, or because of the gross negligence and wanton carelessness of the defendant in operating this car, while it and the machinery and appliances connected therewith were in a dangerous and defective condition, which dangerous and defective condition existed at the time, and was well known to the defendant, its agents, and servants in charge thereof, or could have been known by the exercise of ordinary care and prudence. Plaintiff avers that the accident aforesaid, and the injuries resulting therefrom, were caused by reason of one or both of the acts of negligence just indicated, but she cannot state positively which." Appellee was the only witness who testified in her behalf concerning the nature and cause of the accident that resulted in her injuries. She testified that, when she had placed her foot on the running board of the car for the purpose of getting off at the crossing which the car was slowly approaching, and while being assisted by the conductor, the car gave a lurch and threw her off. She did not state what caused the car to suddenly start forward. There was no evidence whatever that the car or any of the machinery or appliances connected therewith were in an unsafe or defective condition, nor was there any evidence that the motorman was negligent. The evidence for appellant conduced to show that the car did not suddenly, or with a lurch or jerk, start, but that the appellee stepped on the foot board, running lengthwise of the car to enable passengers to get on and off, while the car was in motion; that the footboard was wet from the falling rain, and her foot slipped, and she fell to the ground without any negligence or carelessness on the part of the company or any of its employés.

With the evidence in this condition, the court instructed the jury that: "It was the duty of the defendant to exercise the utmost care, which careful and prudent persons are accustomed to exercise when engaged in like business and under like or similar circumstances of this case, to have its said car and the machinery and appliances thereto attached, in a reasonably safe condition; and it was the duty of the defendant's employés in charge of said car, and in the operation and management of same, to exercise a like degree of such care to safely carry the plaintiff to the place where she wanted to leave or get off said car, and to stop same at said place long enough to allow plaintiff a reasonable opportunity to get off of said car in safety. And if you shall believe from the evidence that the defendant's employés in charge of said car failed to exercise such care, and that, while plaintiff was preparing to leave or get off of said car, with notice or knowledge to the employés in charge of said car, before the same had been stopped, and while said car was being slackened up for the purpose of being stopped, the employés in charge of said car suddenly and with a jerk started said car, or if you shall believe from the evidence in this case that the machinery and appliances of said car were defective and unsafe, and defendant knew this, or by the exercise of ordinary care could have known it, and by reason of such defective and unsafe machinery and appliances said car was caused to suddenly start with a jerk, and by reason of either of these things, and as a direct and proximate cause of either, plaintiff was thrown to the ground and injured, then defendant was guilty of negligence, and the law in this case is for the plaintiff, and you should so find."

Appellant complains of so much of this instruction as submitted to the jury the question as to the unsafe or defective condition of the car, its machinery or appliances, upon the ground that, although the petition alleged that the car, its machinery, or appliances were unsafe, dangerous, and defective, there was no evidence offered or heard in support of this allegation. It contends that by incorporating this idea in the instruction the court submitted an issue, not involved in the case, that was calculated to mislead the jury and was prejudicial to its substantial rights. In answer to this counsel for appellee argues that all that appellee could say was that the car was negligently started with a violent jerk when she was in the act of getting off. Whether the sudden lurch of the car was caused by the negligence of the persons in charge of it, or by reason of defects in the machinery or appliances of the car, that prevented the motorman from controlling it, she did not know and could not state. That she did not see the motorman at the time, and could not say that he was negligent, or that the sudden start was caused by reason of the brake being in such defective condition that it slipped, or was jarred loose, or on account of some other defective appliance of the car. A sharp issue was made by the evidence of the company and the appellee as to whether or not the car increased its speed while she was in the act of alighting. This was the vital point in the case, and the question is, Must the appellee fail because she could not in her evidence specify in what particular the negligence complained of consisted? To put it in another way, Must a passenger, under circumstances similar to those proven in this case, be able to state or prove by witnesses the cause that produced the acts alleged to be negligent, or failing in this, go out of court?

The plaintiff in an action like this has the right to state, in as many different ways as the facts will justify, the negligence that caused the injuries complained of. He is not...