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

• Decision Date: 21 November 1912
• Citation: 150 S.W. 837,150 Ky. 681
• Parties: WHITE v. SOUTH COVINGTON & C. ST. RY. CO.
• Court: Kentucky Court of Appeals

150 S.W. 837

150 Ky. 681

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

Court of Appeals of Kentucky.

November 21, 1912

Appeal from Circuit Court, Campbell County.

Action by John W. White against the South Covington & Cincinnati Street Railway Company. From a judgment for defendant plaintiff appeals. Reversed and remanded.

Howard M. Benton and Judson A. Shuey, both of Newport, for appellant.

L. J Crawford and L. J. Crawford, Jr., both of Newport, for appellee.

NUNN J.

Appellant boarded one of appellee's cars in Cincinnati, Ohio, to go to his home across the river in Kentucky; and, according to appellant, while he was going through what is known as "Taylor's Bottom," before reaching Bellevue, he belched up a part of a sardine sandwich he had eaten just before getting on the car, and threw it out of the window to his right, but, according to appellee, he vomited and threw a part of it on his seat and on the car floor. Soon after this belching or vomiting, the conductor approached him, took hold of his shoulder, shook him, and told him to go to the back platform; that that was the place for him. The conductor started towards the back platform and appellant followed him and, according to his testimony, he asked the conductor what he shook him for, and the conductor answered and told him, if he wanted to vomit, to vomit over the railing. All the witnesses testified that there were some angry words passed between them, and that the conductor struck appellant twice, breaking his nose, loosening some of his teeth and blacking one of his eyes, when, according to appellant and his witnesses, appellant had done nothing to the conductor to cause him to so treat him. The testimony of appellee tended to show that appellant's conduct and language were insulting and boisterous, and that appellant struck, or attempted to strike, the conductor before the conductor hit him. We have stated only enough of the substance of the testimony to show what issues of fact were made.

The court gave the jury three instructions. The first was objected to by appellant, and the second, which was upon the measure of damages, was objected to by appellee because it allowed the jury to find exemplary damages for appellant if it believed the injuries were wantonly and maliciously inflicted upon him by appellee's servant. We have not been cited to, nor do we know of, any authority condemning this instruction. All the authorities in this state upon the subject sustain it.

The first instruction is as follows: "If the jury believe from the evidence that on the 17th day of July, 1911, while plaintiff was a passenger upon defendant's car, the conductor in charge and control of said car, not in his necessary or to him apparently necessary self-defense, assaulted, beat, and bruised the plaintiff, and as the direct and proximate result thereof the plaintiff was injured, they will find for the plaintiff. On the other hand, if the jury believe from the evidence that the plaintiff on the occasion in question was disorderly, or abusive and insulting to the conductor then and there in charge and control of said car, and the said conductor used no more force than was reasonably necessary to eject said plaintiff from said car, or if the jury believe from the evidence that on the occasion in question the plaintiff himself was the aggressor, and while on the car as a passenger thereof cursed and abused the conductor, or assaulted him, the conductor had a right to defend himself, and even though they may believe from the evidence under such a state of case that more force was used by the conductor than was necessary to defend himself, if the plaintiff was the aggressor, they will find for the defendant." It was the duty of appellee to use care to safely transport appellant to his destination, and to protect him from insult and injury at the hands of others or its servants.

In 6 Cyc. p. 601, it is said: "*** Therefore the carrier is liable for assault upon a passenger by the conductor in charge of the train or car in which the passenger is riding whether the assault is in the supposed interest and discharge of a supposed duty to the carrier, or is made as the result of personal malice or desire for revenge...