137 Ky. 611 | Ky. Ct. App. | 1910
Opinion op. ti-ib Court by
— Reversing.
On August 29, 1907, tlie Shelbyville Fair was being held. A number of people going to the fair got on the morning Chesapeake & Ohio west-bound train at Lexington-; others at Frankfort. The train had the usual coaches, and, when it left Frankfort, it was
On the other hand, the conductor of the day train testified that, when the train reached Bagdad, he was on the platform, and invited the people to get on at the west end of the ladies’ coach, while the brakeman invited others to get on a-t the west end of the combination car; that he had on his cap and summer uniform; that the plaintiff made no complaint to him that day; that most of the passengers who got on where she did passed on through the colored compartment „0 the rear of the train; that he liad no notice beforehand of any special crowd going to Shelbyville on that day, and did the best he could with the crowd; that there was plenty of room in the back cars for the people who got on at Bagdad, not seat room, but standing room; and that he directed the people at Bagdad to pass on back. The testimony for the railway company, as to the night train, was, in substance, that the train when it reached Shelbyville stopped the usual length of time for passengers to get on; that, when it was supposed that everybody had gotten on who wanted to get on, the train pulled out. The records of the railway company-showed that the train stopped there that night sis minutes. All the proof showed that there was a very large crowd at the station that night; that’several-trains were to leave the station; and that people intending to take passage on all these trains were crowded up on thp grounds. The case was submitted to the jury on practically this proof, and there was a verdict and judgment against the railway company for $200 in favor of Mrs. Austin. From this judgment the railway company appeals.
There was nothing in the evidence to justify an instruction to the jury to find for the plaintiff if the plaintiff was subject to indignities and humiliation at the hands of the defendant’s agents in charge of the train; and there was nothing in the evidence to show that it was possible for those in charge of the train to furnish plaintiff a comfortable seat in a first-.class car, or that the plaintiff offered herself as a passenger on the train in due time when it reached ■Shelbyville that night. The undisputed evidence was the plaintiff did not offer herself as a passenger at all. The court properly allowed the plaintiff to recover if she was required to ride in the car set apart ■for colored passengers. The statute requires white and colored passengers to be carried separately. The railroad company has no right to disregard the statute, and, if it requires a white person to ride in the colored car, it is an actionable wrong. Wé have here-’ tofore held this both as to white and colored passengers. Quinn, etc., v. L. & N. R. R. Co., 98 Ky. 234, 32 S. W. 742, 17 Ky. Law Rep. 811; Wood, etc., v. L. &. N. R. R. Co.,, 101 Ky. 705, 42 S. W. 349, 19 Ky. Law Rep. 924; L. &. E. R. R. Co. v. Vincent, 96 S. W. 898, 29 Ky. Law Rep. 1049; Southern R. R. Co. v. Thurman, 90 S. W. 240, 28 Ky. Law Rep. 699, 2 L. R. A. (N. S.) 1108.. There was evidence for the plaintiff to the effect that the train stopped at the station.only a second or two, and did not afford her a. reasonable opportunity to ■present herself for car.riage. ... • ■
“ (1) It was the duty of the defendant to provide its train in question with coaches reasonably sufficient to seat and carry comfortably as many persons as in the exercise of ordinary care it should reasonably have anticipated would demand to be carried thereon; and if it failed to do this, or did not furnish the plaintiff such reasonable accommodations as it reasonably could on said train, or if it required plaintiff to ride in the car set apart for colored people, they should find for her the damages she thereby sustained.
“(2) It was the duty of the defendant to s^op its,train at Shelbyville a reasonable time for passengers demanding passage to have a reasonable opportunity to get on, and, if it failed to do so and by reason of this 'plaintiff was left at Shelbyville, the jury should find for her damages she thereby sustained.
“ (3) Unless the jury find as set out in No. 1 or No. 2, they should find for defendant.
£ £ (4) If the jury find for the plaintiff, they should find for her such a sum as will reasonably com
“(5) If the plaintiff voluntarily rode in the colored car, rather than risk getting a seat in one of the other cars, she - can recover nothing on account of riding in that car. If she was not directed to ride in the colored coach, and remained on the train knowing its crowded condition, she cannot complain if she was furnished such accommodations as could reasonably be furnished on it. If the train stopped at Shelbyville the reasonable and usual length of time for passengers to get on and plaintiff failed to present herself at the train, she can recover nothing for being left there, although she failed to so present herself by reason of the crowd at the station.”
In cases of this sort, it is incumbent on the plaintiff to exercise ordinary care to minimize the damages. • The plaintiff cannot recover for any suffering or loss which was due to her own want of ordinary care.
Judgment reversed and cause remanded for a new trial.