Sheffer v. Louisville, H. & St. L. Ry. Co.

• Decision Date: 25 January 1901
• Citation: 60 S.W. 403
• Parties: SHEFFER v. LOUISVILLE, H. & ST. L. RY. CO. [1]
• Court: Kentucky Court of Appeals

60 S.W. 403

SHEFFER v. LOUISVILLE, H. & ST. L. RY. CO. ^[1]

Court of Appeals of Kentucky.

January 25, 1901

Appeal from circuit court, Daviess county.

"Not to be officially reported."

Action by Thomas Sheffer against the Louisville, Henderson & St Louis Railway Company to recover damages for personal injuries. Judgment for defendant, and plaintiff appeals. Reversed.

Weir &amp Weir, for appellant.

Miller & Todd and Wathen & Morrison, for appellee.

GUFFY J.

It is substantially alleged in the petition that on the 21st of January, 1899, the plaintiff, having first procured and purchased a ticket for passage from the agent of the defendant from Owensboro, Ky. to Stanley, Ky. in Daviess county, in which town plaintiff resides, took passage on one of the trains of defendant which was in defendant's custody, and belonged to defendant, and said defendant, by its said sale of ticket and contract with plaintiff, agreed to carry said plaintiff on said train prudently and carefully, to his said destination. That plaintiff took passage on said train, and as soon as he had stepped aboard a car on said train, and before he had time to seat himself said car suddenly, and without warning or notice, started violently and suddenly, and with a great jerk, and threw plaintiff down, and against the stove in said car, breaking three of plaintiff's ribs, and permanently injuring him. Said car was connected with and a part of said train, and said injury was caused by the carelessness and negligence of defendant's agents, servants, and employés in charge of said train. That plaintiff was greatly injured by being thrown down as aforesaid, and confined to his bed by said injury for four weeks, and under the charge of a physician and suffered great pain because of said injury, and was damaged in the sum of $5,000. A demurrer to the petition was properly overruled. The answer may be considered a traverse of all the averments of negligence and violence tending to show a right to recover. The third paragraph is a plea of contributory negligence, which was properly denied by reply. At the conclusion of plaintiff's testimony, the court, on motion of defendant, gave a peremptory instruction to the jury to find for the defendant, which was accordingly done, and plaintiff's petition dismissed. Plaintiff's motion for a new trial having been overruled, he prosecutes this appeal.

The question presented for decision is whether the evidence entitled plaintiff to a submission of the case to the jury. The testimony of plaintiff is, in substance, that: "I started home on the local train, and was getting on as fast as I could. I wanted to get Mrs. Hagan a good seat, and before I could get in with Mrs. Hagan and get a seat the car started with a jerk, and I fell between the stove and the seat, and I could not get up." He also detailed the extent of his suffering and injury. That the train started without any warning, and there were no trainmen about anywhere. Said: "I was going to a seat, and it started with a jerk, and jerked the car from under me, and I fell. There seemed to be a great deal of slack in the couplings. The jerk was harder than usual, I think." That the jerk was harder than usual. That he had traveled on railroads and steamboats all his life. He had a peck of potatoes in one...