117 Ky. 632 | Ky. Ct. App. | 1904
Opinion op the court by
Reversing.
Elizabeth Jolly, who was then 76 years old, took the passenger train of the Illinois Central Railroad Company at Caneyville, Ky., for Owensboro, intending to change cars at Horse Branch, and there take the train on the road running to Owensboro. She was accompanied by her son, and they had two telescopes. She and her son state that when the train reached Horse Branch, and had stopped for the station, after two other passengers had gotten off, she said to her son that they had better get off; that he picked up . the two telescopes, and, she walking in front, they went to the door; that as she got to the door the train started to back, and by the lurch or jerk of the train she was thrown down, her head falling on the platform of the car, and her ankle being twisted under her and severely sprained. She was unable to walk on the foot. The ankle swelled up and turned black, 'For two or three weeks she could not walk a step, and had to remain in bed. She. suffered a great deal, and it was two months before she could put a shoe on. At the trial, in March, 1903, she was still unable to walk on the foot, or to do anything except such things as she could do sitting in a chair, such as. knitting and sewing. Previous to that time she had done all her housework, including washing. On the other hand, the defendant- proved by W. D.
On these facts, the court instructed the jury as follows:
“(1) The court instructs the jury that if they believe from the evidence that while the plaintiff was a passenger on one of the defendant’s passenger trains and cars, and after said train had reached Horse Branch, a station on its railroad, at which point she was to get off of said car, and after she had been notified by the conductor, or other servants of defendant in charge of said train and car, to get off, and after the train had stopped she started to get off the train, and, while herself in the observance of ordinary care, the servants and agents of the defendant in charge of' Its said train carelessly and negligently started said train backward, causing a sudden and violent jerk, by which the plaintiff was thrown down and her ankle sprained, and she thereby damaged as the direct or proximate result of the negligence of the defendant’s servants in charge of its said train, they should find for the plaintiff the damages sustained by her as a consequence of her injuries, not exceeding the amount claimed, $1,999.”
“(7) If the jury do not believe from the evidence that the train on which plaintiff was a passenger had stopped for Horse Branch Station and she had been notified by the conductor or other servant in charge of the train to get off, and, after stopping, while plaintiff was starting to get off, said train was, by the negligence of the agents and servants of defendant, caused to move with a violent jerk, by which plaintiff was caused to fall, and was injured, and she was not so caused to be injured by the negligence of the defendant’s servants, they should find for the defendant.*637 Or if they believe from the evidence that before reaching the station, and before being notified to get off the train, plaintiff voluntarily left her seat, and negligently stood up in the door, and was caused to fall by the ordinary stopping of the train, and, but for her own negligence, if they believe from the evidence she was negligent, she would not have been hurt, they should find for the defendant.”
The other instructions of the court give the measure of damages, define negligence and ordinary care, and state correctly the degree of care required of the defendant in the operation of its train.. The first instruction sets out the state of facts on which the plaintiff was entitled to recover, if the injury accepted as true the version of the transaction given by her and her son. The only question we deem it necessary to decide is whether the seventh instruction fairly submitted to the jury the state of facts shown by the evidence for the defendant, on which it sought exoneration from liability. We have had great difficulty to determine just what the jury were authorized to understand the court meant by the instruction. If the first clause of it was meant as the converse of No. 1, then there was no necessity for the second clause. The instruction can not mean that the plaintiff could not recover unless she was thrown down by a sudden jerk from the backward movement of the train after it had stopped, for, by the last clause, if the plaintiff left her seat before the train reached the station, and stood in the door, and was caused to fall by the ordinary stopping of the train, yet she could recover, unless she did this negligently, and but for her own negligence she would not have been hurt.
Taking the entire instruction together, we conclude its fair meaning to the jury was that if the plaintiff left her seat and went to the door while the train was still moving, and, while standing there, was caused to fall by the ordinary
It is a matter of common knowledge that, as a rapidly rolling passenger train stops at a station, there is a forward movement of persons even sitting in the car. This movement is much more pronounced when one is standing up, and there is greater danger of an- ojd person falling than in the case of one younger, or who is on the lookout, from experience, for the forward surge of the body just as the train abruptly stops. The railroad company is not responsible for this. No amount of care can avoid it. It is not due to any jolt or jar of the train, but simply to the fact that the body of the person standing up continues to move forward when the feet, resting on the door of the car, have stopped. It is the safest for passengers on railway trains to keep their seats until the train stops. If they leave their seats when the train is approaching the station, they take the risk of those things which are incidental to the stopping of the train in the usual way, and with proper care.
In Hughlett v. L. & N. R. Co. (15 R., 178 ) 22 S. W., 551, the court said: “All who board trains as passengers know that the announcement is usually made as the train approaches to a depot before it actually reaches it, to enable passengers to prepare for leaving.” A passenger is not required to keep his seat during the whole journey. He^may move from one part of the car to another. When the train approaches his station, and it is announced, he may prepare to leave the train. Whether he is wanting in reasonable care in leaving his seat then, and standing in the aisle, is a
Judgment reversed, and cause remanded for a new trial.