Payne v. Moore

• Decision Date: 14 November 1922
• Parties: PAYNE, AGENT, v. MOORE.
• Court: Kentucky Court of Appeals

244 S.W. 869

196 Ky. 454

PAYNE, AGENT, v. MOORE.

Court of Appeals of Kentucky.

November 14, 1922

Appeal from Circuit Court, Lincoln County.

Action by Eliza Moore against John Barton Payne, Agent, etc. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

K. S Alcorn, of Stanford, and John Galvin, of Cincinnati, Ohio for appellant.

L. L Walker, of Lancaster, and G. D. Florence, of Stanford, for appellee.

CLAY J.

This is an appeal from a judgment awarding appellee $1,500 damages for personal injuries which she received while a passenger on a Cincinnati, New Orleans & Texas Pacific train, then operated by the Director General of Railroads.

The refusal of a directed verdict is the principal ground urged for reversal.

The facts are these: Mrs Moore and her daughter, Mrs. Peck, were on an accommodation train going from Cincinnati to McKinney Ky. They were both seated in the front end of the ladies' coach. Mrs. Moore faced the engine, while Mrs. Peck sat opposite her with her face toward the rear of the train. A young man, who had boarded the train at Erlanger, a station about 30 miles away, and who had just come into the ladies' coach, got into a fight with some one about the middle of the coach. Another passenger by the name of Hale separated the combatants, and, while taking the young man down the aisle for the purpose of ejecting him, the young man struck Mrs. Moore in the face, severely injuring her. According to Mrs. Moore's account of the affair, the train was slowing down for Willianstown. She heard a "sort of a racket," and thought the passengers were getting ready to leave the train, but soon saw that they had hold of a man and were coming with him. In a very short time he passed and struck her. A few minutes before that the conductor had passed through going toward the engine. So far as she knew, none of the employees were in the train at the time. Mrs. Peck says that she first heard a noise, "a kind of rattling," which she thought was due to the fact that the passengers were getting ready to leave the train at Williamstown. Just about the time she turned back to where her mother was her mother was struck. About a minute before the injury she saw a man she supposed was the conductor going toward the front of the train. From his appearance the man who struck her mother was either drunk or crazy. They were attempting to put the man off at the time. It was just about the time the trainman came in and announced the station that she heard the racket.

For appellant the conductor testified that he saw the boy on the train while he was riding in the smoker. He was with another boy, and they were perfectly quiet. There was nothing in his demeanor, appearance, or conduct to indicate that he was drinking or crazy. When the train pulled into Williamstown, the conductor was on the front end of the train, where his duty required him to be. The last time he was in the smoking compartment was when the train was leaving Dry Ridge, three miles from Williamstown, and there was no disorder of any kind in the coach. The flagman testified that he saw the boy who struck Mrs. Moore several times as he passed through the smoking compartment, and there was nothing disorderly in his conduct or appearance. About a half mile before they reached Williamstown he called the station and opened up the vestibule door for the passengers to alight. At that time no trouble of any kind had occurred. The first he knew of the trouble was after the train had stopped, and he had helped three or four passengers off, when two or three men appeared on the platform holding a boy. On asking what was the matter, one of the men who had hold of the boy said:

"He is crazy or something. He has jumped up here trying to whip everybody in the coach."

The flagman took the boy in charge and turned him over to a peace officer. Mrs. David Caldwell, of Williamstown, who was in the coach with Mrs. Moore, said that about the time the train was back of the courthouse she noticed the boy in a scuffle with another passenger behind him. This was the first she knew of any racket, and the first time her attention had been called to the passenger. When the train got near to the depot at Williamstown, he struck Mrs. Moore. From the time she first heard the racket in the car until Mrs. Moore was hurt, it was not more than a minute or so. She did not observe any misconduct on the part of the boy prior to the racket, and did not see any member of the crew in the coach at the time the trouble occurred. Mrs. Dora Sims, who also lives at Williamstown, and was seated in the back part of the ladies' coach near the smoking compartment, testified that she saw the boy and his traveling companion after they got on at Erlanger. They were laughing and talking and having a good time as they went down the aisle. There was nothing to indicate that he might become disorderly. The boy and his companion then went into the smoking compartment, and she did not see them again until Williamstown was called. He then came into the coach, and, when near the center, she noticed...