South Covington & C. St. Ry. Co. v. Cleveland

• Decision Date: 07 March 1907
• Citation: 100 S.W. 283
• Parties: SOUTH COVINGTON & C. ST. RY. CO. v. CLEVELAND.
• Court: Kentucky Court of Appeals

100 S.W. 283

SOUTH COVINGTON & C. ST. RY. CO. v. CLEVELAND.

Court of Appeals of Kentucky.

March 7, 1907

Appeal from Circuit Court, Kenton County.

"Not to be officially reported."

Action by Edna Cleveland against the South Covington & Cincinnati Street Railway Company. From a judgment for plaintiff defendant appeals. Affirmed.

Ernst Cassatt & McDougall, for appellant.

Robert C. Simmons, for appellee.

CARROLL C.

In one paragraph of her petition against the appellant, the appellee averred that whilst she was in a runabout to which a horse was attached, the employés of appellant in charge of an electric car in Covington did with gross negligence operate and run the car against the vehicle in which she was sitting causing it to be totally destroyed, and throwing her violently to the street, injuring her seriously and permanently. For the injuries and damages thus inflicted, she asked judgment in the sum of $10,425. In another paragraph she alleged that immediately after the accident she was carried into the house of a friend, and while there an inspector of the appellant company, in pursuance of orders to investigate the accident, obtained admittance to the room where she was lying, without invitation or request, and roughly and rudely seized and took hold of her person and examined the wound she had received. For this indignity she asked $2,500. In its answer, appellant, after traversing the petition, pleaded contributory negligence on the part of the appellee. The jury returned a verdict in favor of appellant for $4,500 for injuries received, $500 for indignities, and $100 for the vehicle. To reverse the judgment entered on this verdict, this appeal is prosecuted.

The facts are substantially as follows: Appellee, who was an experienced horsewoman, had driven in from the country and stopped on the street in front of the house of a friend, the vehicle and horse standing between the curbing and the street car track. The horse was restless and, during the time the buggy was standing in the street, would step forward and then backward, and manifest in other ways the fact that it was nervous and somewhat frightened. Several street cars passed during the time appellee was seated in the buggy talking to her friend. As the car that collided with the buggy approached, the horse became more unmanageable, and when the car was some 150 feet distant the horse, in the language of a witness, "began lunging forward and then back, and forward and back and reared a little." Finally when the car was in about 75 feet of the vehicle, the horse backed it on the track, where it came in contact with the rapidly approaching car. The motorman did not lessen the speed of the car until after the buggy had been backed over on the track, although there was nothing to prevent him from seeing for at least 175 feet that the horse was very restless and liable at any moment to get on the track. The speed at which the car was running is variously estimated at from 8 to 20 miles an hour. It ran some 50 feet after striking the buggy. In respect to the conduct of the inspector, a preponderance of the evidence tended to show that appellee was lying on a couch in a nervous and excited condition, that her wounds had just been dressed by a physician when the inspector entered the front window of the room in which she was, sat down by her side, began questioning her about the accident, and opened her waist and examined and put his hands upon her person. The duties of an inspector, as testified to by himself, were to go at once to where an accident was reported, and see whether the conductor or motorman had performed their duties properly, clear the track, keep the cars going, and see the patient, and, if medical attention was needed, to send the company's doctor at once--and that it was not any part of his duty to make any physical examination of injured persons or to report as to the condition of persons who were injured. Appellant complains that the court erred to its prejudice in instructing the jury and in the admission of testimony relating to the indignity at the hands of the inspector. The court instructed the jury in substance that it was the duty of the motorman to keep a lookout for the presence of persons or vehicles, and to have his car under control, and to take all reasonable measures to avoid injuries to persons who might be upon the track, and that if the horse driven by appellee was restless and nervous, moving backward and forward, or prancing or rearing, and that such actions or movements, if any, would lead a person of ordinary prudence in the position of the motorman to believe there was danger of the vehicle being backed on the track ahead of the car, and that by the exercise of ordinary care the motorman could have observed the conduct of the horse in time to have stopped the car, or to have brought it under such control as to prevent the collision, and that he negligently failed to do this, they should find for the plaintiff.

In defining the damages that might be awarded, the jury were told that the measure would be a fair equivalent in money for the mental and physical pain that the plaintiff endured, if any, or that it was reasonably certain she may endure, if any, and a fair equivalent for the permanent impairment of her ability to earn wages by work or labor, as the natural result of her injuries resulting from the collision; and if the jury found from the the testimony that the injuries were caused by the gross negligence of defendant's employés in charge of the car, then they might in their discretion, give a further sum as punitive damages, not exceeding in all the amount claimed in the petition.

Upon the question of the assault made by the inspector, the court told the jury that if they believed from the evidence that the inspector in entering the room where plaintiff was, acted in the scope of his employment, and without the request or consent of plaintiff, placed his hands upon her person and examined her wounds, they will find for her in such sum as will fairly compensate her for the mental suffering, if any and for her sense of shame or humiliation or wounded pride, if any, resulting from such action and indignity or insult to which she was thereby subjected. Other instructions were given, defining gross negligence and ordinary care; and, on the question of contributory neglect of appellee, the jury were instructed that if the plaintiff remained at the place where the accident happened, although her horse had previously been restless and plunging backward and forward at the time of the passage of other street cars, and that the action of the horse indicated that he...