Southern Ry. Co. in Kentucky v. Goddard

• Decision Date: 29 November 1905
• Citation: 121 Ky. 567,89 S.W. 675
• Parties: SOUTHERN RY. CO. IN KENTUCKY v. GODDARD.
• Court: Kentucky Court of Appeals

89 S.W. 675

121 Ky. 567

SOUTHERN RY. CO. IN KENTUCKY v. GODDARD.

Court of Appeals of Kentucky.

November 29, 1905

Appeal from Circuit Court, Mercer County.

"To be officially reported."

Action by R. E. Goddard against the Southern Railway Company in Kentucky. From a judgment for plaintiff, defendant appeals. Reversed.

Humphrey Hines & Humphrey and E. H. Gaither, for appellant.

J. F Vanarsdall and J. T. Wilson, for appellee.

SETTLE J.

Appellee R. E. Goddard, a trader in saddle and harness horses together with two other stockmen, James and McGarvey, desiring to ship by rail, for exhibition at the State Fair in the city of Owensboro, a number of high-grade horses, procured of appellant, Southern Railway Company in Kentucky, a palace stock car for that purpose. The car was left by appellant on a side track in its depot yard at Harrodsburg and at its stock pen and chute provided for loading stock on its cars. Under the stock chute and on appellant's right of way is a ditch, about 8 feet in width and 5 in depth, which extends east of the chute 100 feet. On the south side of the ditch, and about 3 1/2 feet from the track on which the stock car was standing, is a perpendicular stone wall, from 5 to 6 feet in height, erected by appellant to protect the roadbed bordering on the ditch from landslides; the top of this stone wall being on a level with the roadbed. In addition to the horses to be shipped by appellee, James, and McGarvey to Owensboro, they had harness, sulkies, and other "paraphernalia" to be carried on the same car. After loading the horses appellee discovered that there was not room in the car for one of his sulkies. For the purpose of ascertaining whether there was room for it on the platform at the end of the car, he went from the stock chute to inspect the platform of the car. This he did by climbing over the railing of the chute and going down a short flight of steps, attached to the side of the chute and connecting with the roadbed below, on the south side of the ditch, by the side of the car containing the horses. Upon reaching the ground appellee walked to the platform of the car, and, finding no room there for the sulky, went on around the car to see if its south door was securely fastened, and in attempting to return by the same route to the steps at the stock chute he fell into the ditch, thereby receiving a deep cut in the head and fracture of the bones of one shoulder; the fracture causing the use of the shoulder and arm to become permanently impaired. Appellee's injuries were received September 17, 1903, at night; it being quite dark and raining at the time. For the injuries thus sustained he sued appellant in the lower court, and recovered a verdict and judgment for $5,200 in damages. It appears from the allegations of the petition that appellee's claim to damages rests upon the theory that he had not before the accident been upon appellee's premises; that the existence of the ditch and the danger from walking near it in the dark were unknown to him, and could not by reasonable diligence have been discovered by him before he fell into same; and that his injuries were caused by the negligence of appellant in failing to provide the south wall of the ditch with a railing or other contrivance to prevent shippers of stock and others having business on its premises from falling therein. The answer of appellant contained a traverse, and averred contributory negligence on the part of appellee, and the latter plea was controverted by reply.

The appellant did not introduce any evidence, and its counsel insists that that of appellee entitled it to the peremptory instruction asked of the trial court; that is, it is argued that the evidence failed to show any negligence on the part of appellant, but did show that appellee's injuries resulted from his own negligence. This contention is based upon the idea that the ditch had existed for more than 20 years in the condition it presented when appellee was injured, that no other person had fallen in or been injured by it, that there was no necessity for appellee's leaving the stock chute and going near the ditch at the time he was injured, and that he was negligent in doing so and especially in attempting to walk around the car and return to the stock chute without a light. It is also argued for appellant that appellee, in going upon appellant's premises where the car was standing, became a trespasser; but we cannot accept this conclusion. Under the contractual relations existing between appellant and appellee the latter had the right to go upon the former's premises to load his horses in the car furnished him for that purpose. Indeed, it may be said he was invited to do so as a customer of appellant. It cannot, however, be assumed that, because the chute had been erected for the purpose of loading stock on the cars, it was negligence per se for appellee to approach the car for any other purpose than the loading of the horses by leading them through the chute into it.

It is conceded that it was the duty of appellee and his fellow shippers to load their own stock on the car, and that they did so without assistance from any of appellant's servants. But the loading was not complete until the vehicles and trappings of the shippers were also placed in or about the car, the horses haltered in their proper places, the doors of the car securely fastened, and its other openings closed to protect the horses from drafts, or so adjusted as to give them necessary ventilation. All these duties had to be attended to by the shipper before the car started for its destination, and, if any of them could not be performed by appellee without approaching the car on the ground from the outside, he had the right to perform them in that way; and in the absence of knowledge on his part of the condition of the premises, he also had the right to assume that they were reasonably safe for such use. But in such performance of his duties it was incumbent on him to use ordinary care for his own safety. He was not required to anticipate danger, but only to exercise the care that a person of ordinarily prudent habits would have exercised under the same circumstances. Upon the other hand, a common carrier like the appellant is required to furnish shippers of stock over its road reasonably safe premises for loading same on the cars; and as stock is loaded for shipment at night as well as by day, if a ditch is maintained on the premises by the carrier, about or near which a shipper, without knowledge of its presence, would...