Bennett v. Louisville Ry. Co.

| Ky. Ct. App. | Jan 15, 1906

OPINION by

Judge Nunn

— Affirming.

Appellant instituted this action against the appel-lee to recover damages for injuries received upon one of its cars, as she alleged, by the negligent manage-rnnt and operation thereof by the motorman. On the trial the jury returned a verdict in favor of the appel-lee, and she has appealed.

She alleged in her petition, in substance, that the motorman stopped the car for her, and as she entered the door of the car, and was in the act of taking her seat, the motorman negligently turned on the current, and started the car with a sudden and unusual jerk, by which she was thrown with great force and violence against the end or edge of the seat, by reason of which she received painful injuries to her body and spinal column; that she was made sick and sore, and confined to her bed for a long time, suffering great pain, and was compelled to undergo a serious and painful operation, in the removal of the lower end of her spinal column; that her loss of time and medical' expense amounted to $500; and was otherwise injured and damaged to the extent of $5,000. The appellant asked for a reversal, for the reason that the verdict was against and contrary to the evidence. That the court erred in giving to the jury instructions 2 and 3;

The appellant and one witness sustained her allegation that the jerk in starting the ear by the motorman was a sudden and unusual one, and that by reason thereof she was injured, and in the way and manner and to the extent stated. There was no. contrariety of evidence as to the extent of her injuries. The appellee introduced one witness, whose testimony tended to show that the jerk made in starting the car, was not sudden or unusual. We are of the opinion that the preponderance of the evidence favored the claim of the appellant, hut we are not authorized to reverse the judgment of the lower court on that account.

Instruction No. 3 complained of by appellant is an instruction in the usual form upon the question of contributory neglect. The objection to-this instruction is that there was no evidence npon which to base it. It is trne that there was a bare scintilla of evidence, if any, to authorize it. It is a doubtful question as to whether or not it should have been given, hut in our opinion the giving of it did not prejudice the substantial rights of the appellant.

Instruction No. 2 reads as follows: “It was not the duty of the agent and servant of the defendant in charge of the ear tó have the car remain standing until the plaintiff was seated in said ear; and unless you believe from the evidence that the said agent or servant in charge of the car failed to exercise that degree of care with which he was charged, as set out in instruction No. 1, and by a reckless or unnecessary jerk or lurch of said car started the same; and the plaintiff was injured thereby, the law is for the defendant, and you should so find. ’ ’ By the first instruction the court, in effect, instructed the jury that it was the duty of the agent of appellee in operating the car upon which appellant was a passenger to observe the hightest degree of care, which a prudent person would exercise under like circumstances, in the management and control of the ear, to enable appellant to board it with safety, and if the jury believed from the evidence that the agent in charge failed to exercise the degree of care stated, and by a reckless or unnecessary jerk or lurch of the car, started the same, and appellant was thereby thrown against the seat and injured, then the law was for her.

The appellant complains of that part of the' second instruction which told the jury that it was not necessary for tire agent in charge of the car to have it remain standing until the appellant wa's seated. This instruction seems to be in conformity with, the rule enunciated in the ease of L. & N. Railroad Company v. Hale, 44 S.W. 213" court="Ky. Ct. App." date_filed="1898-01-18" href="https://app.midpage.ai/document/louisville--nashville-r-r-co-v-hale-7133752?utm_source=webapp" opinion_id="7133752">44 S. W. 213; 19 Ky. Law Rep., 1652, 42 L. R. A. 293, and Shelter v. L. H. & St. L. R. R. Co , 60 S. W. 403; 22 Ky. Law Rep., 1305. Both of these cases, however, were against steam railways, but we we can see no reason why the same rule would not be applicable to street railways. It would be impracticable to require in every instance tliose in charge of a street car to have it remain still until every passenger that boards it takes a seat. This would make street car travel slow, vacations, and inconvenient.

There are instances in which a car should be permitted to remain still until the passenger is seated; that is, where the passenger is old, feeble, crippled, or in any condition which makes it reasonably apparent to those in charge of the car that the person needs unusual care and precaution for his or her protection. But the case at bar does not come within this rule. It is true that she was proven to- be large and fleshy, but there was no proof that her flesh was any great burden to her, nor was there anything proven which might have indicated to the motorman in charge of the car that any extra precautions were required on bis part for her safety.

The judgment is affirmed.

Petition for rehearing by appellant overruled.