Smith v. Louisville & N.R. Co.

• Decision Date: 10 October 1893
• Parties: SMITH v. LOUISVILLE & N. R. CO.
• Court: Kentucky Court of Appeals

23 S.W. 652

95 Ky. 11

SMITH v. LOUISVILLE & N. R. CO.

Court of Appeals of Kentucky.

October 10, 1893

Appeal from court of common pleas, Franklin county.

Action by Alexander Smith, by next friend, against the Louisville &amp Nashville Railroad Company, for injuries from ejectment from train. Judgment for defendant. Plaintiff appeals. Reversed.

James Andrew Scott and Rufus K. Dinkle, for appellant.

John W Rodman, for appellee.

HAZELRIGG J.

The plaintiff, a minor, suing by his next friend, alleged that while he was riding on the defendant's car from Collins' Station to the city of Frankfort, and while the car was in rapid motion, "the defendant willfully negligently, and carelessly, by one of its agents and servants, to wit, a brakeman, kicked and threw" him off of its train, thereby breaking his arm and causing him other serious injury. The defendant denied these averments, and for a further defense alleged that the plaintiff secretly got on the rear end of one of its trains for the purpose of obtaining a free ride to Frankfort, and while so riding was discovered by its agent and servant, and thereupon voluntarily jumped off the car when in rapid motion, and whatever injury he received was caused by his own act. The plaintiff, who was 17 years of age, and whose home was in Frankfort, testified that he had been working at Collins' Station, some two miles west of the city, and, becoming sick had gotten on the train for the purpose of stealing a ride home. That he was sitting on the platform, with his feet on the steps, and was discovered by the brakeman, who demanded his fare, and, upon his not having either a ticket or any money, he was told that he must get off. He replied that he would if the train would stop. The brakeman then said, "I thought I told you to get off of here," and at the same time kicked him upon the hip, which broke loose his hold on the railing, and he fell headlong on the ground, becoming unconscious. The brakeman testified that when he discovered the plaintiff, and ascertained that he had neither a ticket nor money, he told him that he must get off when the train got to the bridge, and that before he finished the sentence the plaintiff answered that he would get off now, and swung himself off in the cut, etc. He also testified, over the objection of the plaintiff, that "he had no authority from the conductor, or in any way, to put persons off the train," and that it was not his duty to do so, but that it was his duty to look after the comfort of the passengers, and to assist them in getting on and off at stations, and, in the absence of the conductor, to take up tickets and collect fares for the convenience of the conductor when he was engaged in other parts of the train; that if the plaintiff had paid him he would have handed it to the conductor, etc. The conductor testified that the brakeman had no authority to put any one off for nonpayment of fare, and he gave him no such instruction. "It is his duty," testified the conductor, "to look after the safety and comfort of passengers, to assist them on and off the train, and to assist me in ejecting an unruly passenger or one who has no right to ride, and, when I am otherwise engaged, to collect tickets and fare, and give them to me," etc. Upon this state of case the court told the jury that if they believed from the evidence "that it was a part of the duty of the brakeman, under his employment as brakeman, to eject or put off of the train persons who failed or refused to pay their fare, and they shall further believe that the brakeman kicked plaintiff off the cars while in motion, or used unnecessary force in putting him off the car, they should find for the plaintiff such damages as he sustained thereby not exceeding $10,000;" but that if they believed from the evidence "that the plaintiff jumped off the train, and was not kicked off by the defendant's employe, they should find for the defendant," and, lastly, that if they believed from the evidence "that the brakeman was not charged or required, as part of his duty under his employment as brakeman, to put persons off the train who had failed to pay their fare, they should find for the defendant." The jury found for the defendant, and did so possibly because, without regard to the question of whether the brakeman kicked the plaintiff off the train, the proof submitted to them was conclusive that the brakeman had not been instructed to put persons off the train, and that such service was no part of his duty.

We are of opinion that the only question under the pleadings and the proof, which should have been submitted to the jury, was whether the brakeman kicked the plaintiff from the train. It was admitted that the brakeman was an employe of the defendant, and that the train was in rapid motion when the plaintiff got off or was kicked off. Whether or not what the brakeman did was in the scope of his authority or in the line of his employment was a question of law, or of mixed law and fact, to be determined by the court alone from the...