152 Ky. 264 | Ky. Ct. App. | 1913
Reversing.
Claiming that in attempting to- board one -of defendant’s trains ,she sprained her -arm, plaintiff, Ellen Dyer, brought this -action against the Louisville & Nashville Railroad ‘Company to recover damages. The jury returned a verdict in her -favor for $350.' Judgment was entered- -accordingly, and -the railroad company appeals.
Plaintiff predicated- her right of -action on two grounds: (1) The failure of the brakeman to assist her on the train; (2) the steps -of the car were unreasonably high, and by reason of this fact defendant failed to furnish her a reasonably safe place to board the •train. Defendant first moved -to strike out all the allegations of the petition with reference to the failure -of the brakeman to -assist plain-tiff. This- motion was sustained by the judge then presiding. -Subsequently that judge was succeeded by -another judge, -and plaintiff was permitted to- file an- amended petition pleading in substance that under the rules- of the company the brakeman was required to- assist ladies -on the train, and that on the -occasion- in question he failed to- do -so. The case was submitted to the jury on both issues. The defendant contends that the court improperly -submitted to the jury -the question whether or not the brakeman failed to assist 'plaintiff. The determination of -this question requires a brief summary of -the -evidence.
• According to the evidence for plaintiff, she, on the occasion in question, went to Rossland, ,a -station bn defendant’s road, to board -one -of its trains. She had her -baby in her -arms. She- was also accompanied by her husband and- little -girl, her brother-in-law, -Gilbert J-ackson, and his wife. There was no ticket office, and she was -unable to -purchase a ticket. The train stopped, and the brakeman got on the ground -and -placed the little girl -on the first -step of the smoker. .She proceeded up- -the steps and was followed by her father. Plaintiff’s husband offered to take the baby, -but she preferred that he take care of the little girl, and kept the baby in her arms. The brakeman was -standing nearby when plaintiff ¡attempted to- board the train-.' Her bróther-in-law, who was standing near her, attempted to help her up the 'steps but she pulled up by herself. The train stopped
According to 'the .evidence for defendant, as given by á number of witnesses not in its employ, the company had' provided what is called a cinder platform at Rossland, which extended along the track for a distance of about a hundred feet and was eight or nine feet wide. The cinders practically covered the ties, though here .and there there may have been a tie 'that was not altogether covered. The cinders came up to the ball of the rail and the steps were .about 18 inches above the cinder platform. This is the regulation distance. The conductor and brakeman had no recollection of plaintiff’s being injured. No complaint was made to them at the time.
This court has. committed itself to the doctrine that the care that employes of railroad companies must exercise towards .the general public is to be determined by the principles of law,' and not by the rules adopted by the company for the guidance of employees. The rules of the company are not, therefore, admissible for tbe purpose of showing either proper care or negligence on the part of the company’s employees. Louisville Railway Co. v. Gaugh, 133 Ky. 467; Southern Railway
The question .of contributory negligence has no. place in tbe c'ase. At a station like the one in question a train stops for -only a few -seconds. - A passenger has no opportunity to. .select -any particular place -for boarding the train. He acts -quickly, and in an emergency. The fact that he knows the .steps are unreasonably high, and yet attempts to board the train -and is thereby injured, will not, under such circumstances, defeat a recovery.
On another trial, fflf the evidence he. substantially the 'same, the court will instruct the jury in substance as follows:
1. If you (believe from 'the evidence that on the occasion in question plaintiff attempted to board defendant’s train for the purpose of taking passage thereon and that the steps of the train were unreasonably high from the ground, and on that account not reasonably safe for boarding a train and by reason thereof plaintiff was injured, you will find for plaintiff. Unless you so believe, you will find for defendant.
2. If you find for plaintiff you will award her such sum in damages as you may believe from the evidence will fairly and reasonably compensate her for any loss of time naturally resulting from her injuries, if any, not exceeding $200, and for any mental or physical pain and suffering which you may believe from the evidence she endured as the direct and proximate result of her injuries, if any, not exceeding the sum of $3,800; your finding in all not to exceed the sum of $4,000.
3. Nine or more of you may return ,a verdict, but if less than twelve make a verdict, all who agree to it must sign it.
.No other questions are passed on.
For the reasons indicated, the judgment is reversed and cause remanded for new trial consistent with this opinion.