135 Ky. 438 | Ky. Ct. App. | 1909
Opinion op the Court by
Reversing.
G. W. Gunterman was a passenger on the accommodation train of the Illinois Central Railroad Company running from Central City westward. The train was much crowded, and Gunterman rode upon the platform of one of the cars, as his destination was a station known as Mercer, about three miles from Central City. The proof for him tends to show these facts: After the train pulled out from Central City, a crash was heard in the smoking car, and there was some disturbance in there. The conductor went forward hurriedly to the car, and soon he and the flagman came out bringing with them a man named Jackson, whom the conductor said he was going to put off; but he then decided not to put him off, but to take him on to Greenville, and allowed him to go back into the car. After Jackson returned to the car, there was still a disturbance in there. When the train reached Mercer, Gunterman got off and was standing on the platform, while the flagman was helping a lady off. At this juncture a man named Laswell, who had gotten off the train, picked up a rock and knocked down the porter, who was by the side of the car, and struck Langley, the flagman. The proof for the plaintiff shows that at this point the conductor and Langley took out their pistols and Langley began shooting; one of the balls from Langley’s pistol striking Gunterman in the back of the neck.
“(1) The court instructs the jury that if they believe from the evidence that the plaintiff was a passenger on the defendant’s (railroad company’s) train from Central City to Mercer station, and that when the plaintiff was on the station platform at Mercer Station on the occasion of his leaving the cars after he had been carried from Central City to Mercer Station, and before he had had a reasonable opportunity to leave said station platform after getting off the cars, the agents of defendant railway company, or any of them in charge of said passenger train, while attempting to shoot another person, unintentionally but negligently shot and wounded the plaintiff upon his body and person with a pistol, then, and in that event, the jury should find for the plaintiff such compensatory damages, if any, as • were thereby caused to the plaintiff, and which were the direct and natural result of the negligence aforesaid, not exceeding $1,999 the amount claimed.
“(2) The jury should find for defendant unless they should believe from the evidence that some one of the defendant’s agents in charge of said train while attempting to shoot another person negligently shot and wounded the plaintiff while he was on the .station platform, and before he had had a reasonable opportunity to leave the platform after getting off the cars.”
‘•‘(4) Negligence as used in' the instructions means the failure to use ordinary care, and ordinary care is such care as an ordinarily prudent person would usually exercise under similar circumstances in matters involving his own interest.
The jury found for Gunterman, and fixed his damages at $1,000. The railroad company appeals.
The court did not err in refusing to instruct the jury peremptorily to find for the defendant, for in helping the passengers from the train the flagman was discharging a duty assigned him by the defendant. It was the duty of the defendant to protect its passengers, not only on the train, but while they were alighting from it, and until they had had a reasonable time to leave the platform. It was incumbent upon it to protect its passengers from unruly persons as they alighted from the train no less than while they were on the train. If the flagman was attacked while he was performing the duty assigned him by the defendant, he had a right to stand his ground and meet force with force, and to use as much force as was necessary to protect him or his associates from death or great bodily harm at the hands of their assailants. In doing all this he was acting for the company, and therefore it is responsible for his acts. Gunterman had just alighted from the train, and a reasonable time had not elapsed when the shooting was done.
The fact is that the difficulty at Mercer seems to have followed- the flagman striking Laswell after the conductor had left the car and without his knowledge; for it is evident that Laswell got the rock and began the assault at Mercer to avenge himself for the blow which the flagman had given him on the train. This occurred just as the train was pulling into Mercer, and the conductor had no opportunity to do anything before the train reached Mercer. He was then taking up the tickets in the ladies’ car, and had no knowledge of it until after the difficulty at Mercer. There was no evidence in the case that any one of the trainmen but Langley, the flagman, did any shooting. In instruction No. 1, in lieu of the words “the agents of defendant railroad company or any of them in charge of said passenger train,” the court should have used the words, “the defendant’s flagman, Langley.”
The other objections urged are as to matters which will probably not occur on another trial. In view of all the evidence, we conclude that there should be a new trial.