138 Ky. 476 | Ky. Ct. App. | 1910
Opinion of the Court by
Reversing.
On the night of April 21, 1906, Gilbert Setser was killed on the line of the Louisville & Nashville Railroad, and the first of these actions was brought to recover for his death on the ground that it was caused by the negligence of the railroad company. Upon a trial of the action at the March term, 1909, of the circuit court, there was a verdict and judgment for $30,000 in favor of the plaintiff. The court at that term overruled the defendant’s motion for a new trial, and gave it until the 20th day of the next April .term to prepare and file a bill of exceptions. The March term was held by a special judge, who shortly before the 20th day of the April term wrote to the defendant’s attorney that it was not convenient for him to be present on the twentieth day of the term for the filing of the bill of exceptions referred to, and asked that the time be extended so that he could come down a day or two later. The defendant’s attorney then saw one of the plaintiff’s attorneys, who agreed to what the judge wished, apd thereupon the defendant’s attorney went before the court, and the regular judge made an order to the effect that the defend
The motion to strike out the bill of exceptions and the appeal from the order dismissing the plaintiff’s petition to set aside the orders referred to will be disposed of together. It was decided in Knecht v. Louisville Home Tel. Co., 121 Ky. 492, 89 S. W. 508, 28 Ky. Law Rep. 456, that if a bill of exceptions was filed within the time allowed, but no transcript of the evidence, the transcript of the evidence could not be filed after the court had lost jurisdiction of the case. But here the order extending the time for the filing of the bill of exceptions was made before the expiration of the time allowed for that purpose, and was not objected to. Within the time allowed by the order, the bill of exceptions and transcript of the evidence were filed, and no objection was made then to the filing of the bill of exceptions or transcript. The court had full power to extend the time for filing the bill of exceptions -to another day in the term, and,
The evidence on the trial of the case as to the death of the intestate was as follows: Gilbert Setser was 20 years old. He got on a passenger train at Middlesboro about 10 p. m. on Saturday, April 21st, ■to go to his father’s home. He had been drinking-before he got on the train, and continued -to drink after he got on it. After the train pulled out of Middlesboro, the conductor started at the front of the train to take up his tickets, and, having- walked through the front part of the car set apart for colored passengers, came to the rear part of the car, which was called the “smoker,” in which Gilbert Setser was. Before ■ the conductor had gotten into the car Gilbert Setser had had a fuss with a man named France, and also with a man named Sizemore, and Sizemore had drawn a knife on him. There was considerable commotion in the car, and a beer bottle had been thrown by some one, but apparently not by the deceased. When the conductor came into the car, he was appealed to by two passengers to put the deceased oft, saying- if he did not, there would be serious trouble. The conductor made the deceased sit down and told him. to be quiet. The deceased sat down, and the conductor began taking up his tickets; but, before he had taken up many fares, the deceased got out of
It is insisted for the defendant that only two witnesses testified to his being pushed off the car, and that a number of other witnesses introduced by the plaintiff contradicted this evidence, so that, taking the plaintiff’s evidence alone, the mind is left in doubt as to how it was, and therefore a peremptory instruction to find for the defendant should have been given. But the jury might have believed the two witnesses and not have believed the others. Where there is testimony warranting a recovery, the plaintiff’s right to go to the jury is not affected by the fact that other witnesses whom he introduced may have given contradictory evidence.
It is also insisted that the plaintiff’s petition does not charge tlie defendant with pushing the deceased off the train while it was in motion. This is true. The petition and the amended petition seem to have been framed on the idea that the deceased was helplessly drunk, and that the defendant was negligent
When the deceased was profane and boisterous in the car and had behaved as he had, if the conductor had not put him off, and the deceased had hurt one of the jDassengerS} the company would have been justly held responsible for not protecting him by putting the deceased off. We so held under practically the same proof in Louisville & Nashville Railroad Company v. McEwan, 31 S. W. 465, 17 Ky. Law Rep. 406; Id., 51 S. W. 619, 21 Ky. Law Rep. 487. Section 806, Ky. St., provides in substance that if a person while riding on a train shall in the hearing or presence of other passengers, and to their annoyance, utter obscene or profane language, or behave in a boisterous or riotous manner, it shall be the duty of the conductor in charge of the train
The plaintiff proved by three witnesses that, as the conductor was taking the deceased from the train, a passenger said to him- not to put him off; that he would see that he hurt nobody. The conductor declined to do this, and properly so. If he had trusted to the passenger keeping the deceased quiet, and the deceased had not kept quiet, but bad hurt another passenger, the company would have been held responsible. The deceased had forfeited his right to ride on the train, and the conductor was not required to take the chance of a stranger being able to keep him quiet. The evidence was admitted over the defendant’s objection and should have been excluded.
While the testimony for the plaintiff did not show a right to recover on the ground set out in his petition, there was evidence introduced by him sufficient to take the case to the jury on two grounds: First, that ih'e servants of the defendant pushed the deceased from the train while it was in motion, against the side of the cut, and thus caused him to fall under the train. Second, that he was put off the train in a deep cut near the mouth of the tunnel where it was not safe to put off a person. The defendant introduced proof showing that on the next morning, about 60 feet from the mouth of the tunnel, there were signs of a man’s hands and feet on a clay hank as though one had there tried to climb up the clay bank
The plaintiff’s petition is not sufficient to sustain a recovery on the ground that the place where he was put off was dangerous, or that he was pushed off the train while it was in motion; but, as the evidence was all heard on the trial, we have considered the case on the merits, and on the return of the case to the circuit court the plaintiff will be allowed to amend his petition.
The judgment in first case reversed, and cause remanded for a new trial and for further proceedings consistent herewith.