130 Ky. 676 | Ky. Ct. App. | 1908
Opinion of the Court by
Reversing.
The- plaintiff, Caroline Britton, instituted this action against the defendant, Lexington Railway Company, to recover damages for injuries alleged to have resulted from the negligence of the defendant. The jury returned a verdict in her favor for $720, and the defendánt appeals.
As grounds for reversal, the following errors are assigned: First, the refusal of the court to give a
The accident to the plaintiif occurred on December 25, 1906. While we are inclined to believe, from the record, that she had gotten inside of the car when she was injured, there is no doubt of the fact that she had passed up the steps of the car and on to the platform thereof, and was in the act of entering the car. As the court has determined to reverse this case on other grounds, it will be unnecessary to pass upon the first-error assigned by appellant.
The court instructed the jury as follows:
“No. 1. If the jury believe from the evidence that the plaintiff while entering the car of the defendant was thrown against a seat of the defendant’s car and thereby injured, and that she was so thrown by reason of the car being started forward, and if the jury further believe from the evidence that said car was so started forward by defendant’s employes in charge of said ear at a time when said employes knew, or by the exercise of reasonable care could have known, that it was unsafe to the plaintiif to so start said car, and at a time when the plaintiff had not had a reasonable opportunity to get a seat, or to make her footing safe on the floor of said car, the jury should find for the plaintiif, unless the jury further believe from the evidence that plaintiif was guilty of contributory negligence as explained in the third instruction, in which event the jury should find for the defendant.
“No. 2. The jury should find for the defendant unless the jury believe from the evidence that while entering the defendant’s car the plaintiif was thrown against a seat of the car and thereby injured, and that
“No. 3. If the plaintiff was negligent in the manner of her going into defendant’s car, or if she was negligent in failing to get a seat, or to make her footing safe on the floor of said car, and if by reason of such negligence the plaintiff was caused to be thrown against a seat when but for such negligence she would not have be'en so thrown, this was contributory negligence on the part of the plaintiff. • And, if the plaintiff- was guilty of contributory negligence as herein explained, the. jury should find for the defendant, whether the defendant’s employes in charge qf said car were also guilty of negligence or not.
“No. 4. Negligence is the want of ordinary care. Ordinary care is such care as persons of ordinary prudence usually exercise under the same or similar circumstances.
“No. 5. If the jury find for the plaintiff, they should find for her in such sum in damages not exceeding $2,000 as will fairly compensate the plaintiff for any injury done to her by reason of being thrown against the seat of defendant’s car, in which event the jury may include any expense reasonably incurred by the plaintiff in procuring medical treatment for injuries caused by being so thrown, and not exceeding $50, if the plaintiff has incurred any such expense, and also compensation for any physical pain or mental anguish
'While the trial court in overruling appellant’s motion for a new trial argues with great force and learning in favor of the proposition of law announced in instruction No. 1, the rule so announced does not accord with the weight of authority, and is not the law in this State. The facts in the case of Bennett v. Louisville Ry. Co., 122. Ky. 59, 90 S. W. 1052, 28 Ky. L. R. 998, 4 L. R. A. (N. S.) 558, 121 Am. St. Rep. 453, are identical with those in this case. There the petition charged, in substance, that the motorman stopped the car for plaintiff, and, as she entered the door and was in the act of taking her seat, the motorman negligently turned on the current and started the car with a sudden and unusual jerk, by which she was thrown with great force and violence against the edge or end of the seat, and thereby injured. In discussing the law applicable to the case, this court, after citing the cases of Louisville & Nashville Railroad Company v. Hale, 102 Ky. 600, 19 Ky. Law Rep. 1651, 44 S. W. 213, 42 L. R. A. 293, and Sheffer v. L., H. & St. L. R. R. Co., 60 S. W. 403, 22 Ky. Law Rep. 1305, said: “Both of these cases, however, were against steam railways, but we can see no reason why the same rule should not be made applicable to street railways. It would be impracticable to require in every instance those in charge of a street car to have it remain still until every passenger that boards it takes a seat. This would make street car travel slow, vexatious, and inconvenient. There are instances in which a car should be permitted to remain still until the passenger is seated; that is, where the passenger is old, feeble, crippled, or in any condition which
Instruction No. 5 is attacked upon the ground that it does not present the correct measure of damages. This is true, for the court, after fixing plaintiff’s damages at a sum which would compensate h§r for any injury done her, provides, further, that the jury might include the reasonable expense of medical treatment and reasonable compensation for any physical pain or mental anguish suffered by the plaintiff. Under the language used, the jury might have awarded plaintiff any damages they saw fit “for any injury, done to her;” and the inclusion of damages for mental and physical suffering and reasonable expense incurred for medical treatment did not exclude any other element which the jury might have seen fit to consider. Under the facts of the case no elements other than physical and mental suffering and reasonable physicians’ bills could be considered by the jury,
"We shall next consider the question whether or not the petition stated a cause of action. The language of the petition is: “* '* # And said plaintiff, Caroline Britton, says that on said date, and while she was entering one of said defendant’s cars at the corner of Upper and Main streets, the car was started before she had an opportunity to reach a seat and threw the plaintiff backwards against a seat of the car, and thereby injured the plaintiff’s back and fractured a rib, and that the said injury has caused the plaintiff untold suffering, mental anguish, pain, and has permanently injured the plainuff, and that said injuries were caused wholly by the negligence and carelessness of the defendant, its agents, servants, and employes in so negligently and- carelessly starting said car that
Further complaint is made of the error of the court in admitting evidence as to the amount of plaintiff’s doctors’ bills under the allegations of the petition*?
“No. 1. If you believe from the evidence that plaintiff, while entering defendant’s car, was injured by being thrown against one of the seats thereof, and that such injury was caused by the negligence of defendant’s agents or employes in charge of said car in starting said car by a reckless or unnecessary and unusual jerk or lurch, you will find for plaintiff.
‘No. 2. Unless you believe that plaintiff, while enter
. “No. 3. If you find for the plaintiff, you will award her such sum in damages, not exceeding $2,000, as you believe from the evidence will fairly compensate her for her physical and mental suffering, if any, caused by her injury, if any, and for her reasonable expenses foi’ medical treatment incurred as a result of her injury, if any.”
For the reasons given, the judgment is reversed and cause remanded fof a new trial consistent with this opinion.