112 Ky. 915 | Ky. Ct. App. | 1902
Opinion op the coubt by
Reversing.
The plaintiff, a minor, by his next friend, alleged “that on the 14th day of October, 189S, the defendant company ran a passenger excursion train from Morehead, Kentucky, to Huntington, West Virginia, and return, at one fare for a round-trip ticket, oin account of the show given in Huntington by Buffalo Bill; that he boarded the train at Aden station with a number of other parties, among whom were the defendants, Walter Littleton and Walter James; that upon the return of the train it reached .Aden about 8:20 p. m., after dark, and that he was so intoxicated from the use of liquors from the time he left Huntington that he was insensible to danger and did not realize wha,t he was doing, which fact was well known to the defendants; that when in this condition the train was stopped, and he was ejected therefrom, about a quarter of a mile wést of Aden station, at a very rough place on the defendant’s roadbed, by the defendants Littleton and James and a brakeman in
Section 806 of the Kentucky Statutes provides that “if any person whilst riding on a passenger or other train shall, in the hearing or presence of other passengers and to their annoyance, use or utter obscene or pfrofane language, or behave in a boisterous or riotous manner, it shall be the duty of the conductor in charge of any train upon which such person is to put him off the train, or to give- notice of such violation to some peace officer at the first stopping place where any such officer may be.” Whilst the plaintiff testifies that he was totally unconscious of what he was doing from the time the train left Catlettsburg until ¡he was picked up upon the side of the track by a freight train, the other testimony does not bear out his statement in'this respect. He was sober enough to continually pass through the train, to resist the efforts of his friends to put him off at his home station, and to get back on the train after it had started; and his conduct from the time he boarded that train at Huntington would have justified those in charge of the train in ejecting him therefrom, and the company would not have been liable for any injury which might result therefrom, provided no more force was used in doing it than was reasonably necessary; and this rule applies to an intoxicated person, although he may not be able to take care of himself In Railroad Co. v. Logan, 88 Ky., 289 (10 R., 798) 10 S. W.,
It seems clear from these authorities tba|: plaintiff was properly ejected from the train, and we think there can be ho doubt that his injuries were caused by his own wrongful conduct in running beside the moving train with the intention of attempting to get on board of it. The remaining question to be considered is, therefore, whether the railroad company, under the circumstances, was under legal obligations to stop its trains for the purpose of determining • whether plaintiff had been injured, and, if so, to have again taken charge of him. Our attention has not been directed to a case in which this precise question has been passed upon. In Reed v. Railroad Co., (104 Ky., 603) (20 R., 815, 990) (47 S, W., 591, 44 L. R. A., 823), the plaintiff was a passenger upon one of the defendant’s trains, standing outside of the car, upon the platform, and, in passing over a high trestle, fell a distance of 40 or 50 feet to the ground below, and was greatly injured. The defendant knew of the accident, but failed to go to his assistance, and the suit was to recover damages on the ground that the defendant was guilty of negligence in failing to stop the train and care for him. In that case it was held: “The obligation on the railroad to stop its train and rescue the plaintiff was wholly subordinate to its obligation to its other passengers; and, before the plaintiff could complain of the’ company’s failure to assist him, he must allege facts showing that such as
For the reasons indicated, we are of the opinion that the trial court erred in overruling the motion for a peremptory instruction, and the judgment is reversed, and the cause remanded for proceedings consistent with this opinion.
Petition for rehearing by appellee overruled.