180 S.W.2d 546 | Ky. Ct. App. | 1944
Reversing.
This appeal is from a judgment of the Clark circuit court rendered upon a jury's verdict for $7,500 in favor of appellee, administratrix of the estate of Roy Barnes, who was killed by appellant's freight train at Agawam, Clark county, Kentucky, in the early morning hours of August 17, 1941. About one hour before the accident occurred decedent had arrived at Agawam Station on appellant's passenger train from Winchester, Kentucky. The exact distance in miles between *618 Winchester and Agawam is not shown but it is stated in the record that it is about a fifteen minutes run by train. The action is based upon the alleged negligence of appellant's agents and employees in charge of the passenger train and the freight train, respectively, as follows: "The plaintiff further says that about midnight of August 16, 1941, or in the early part of the morning of August 17, 1941, the defendant, through its agents, servants, and employees, accepted said Roy Barnes as a passenger to travel from Winchester to Agawam Station in Clark County, Kentucky; that when said Barnes was so accepted as a passenger he was under the influence of intoxicants and incapable of caring for himself, and while in that condition which condition of the decedent was known by the defendant, through its servants, agents and employees in charge of the train upon which said decedent was a passenger, or by the exercise of ordinary care could have been discovered by said servants, agents and employees in charge of said train, the defendant, through its employees, carelessly, with gross negligence and with wanton and reckless disregard for the rights and safety of said decedent, permitted said decedent to leave its train and abandoned him at Agawam Station, on the defendant's right-of-way, a known place of danger and a place where the defendant, through its servants, agents and employees, knew that said decedent would likely suffer injury; that a short time after decedent had been so left by the defendant, through its servants, agents and employees, and while the said decedent was on one of the three tracks, or roadbeds, of the defendant at said Agawam Station on August 17, 1941, the defendant by and through its servants, agents, and employees, carelessly, with gross negligence and with wanton and reckless disregard of the rights of said decedent, ran one of its engines and train of cars into, against and over the body of said decedent and inflicted such injuries upon his body, that he died within a few hours thereafter."
Appellant filed a general demurrer to the petition, which demurrer the court overruled. The answer consisted of a traverse and plea of contributory negligence. The first ground relied on for reversal is that the petition fails to state a cause of action. The argument is that the petition was defective in that it merely stated that decedent was under the influence of intoxicants and *619 incapable of caring for himself, but did not allege that he was in such a state of intoxication that he was helpless or irresponsible, nor that he was incapable of caring for himself by reason of being under the influence of intoxicants. It is to be noted that the language "that when said Barnes was so accepted as a passenger he was under the influence of intoxicants and incapable of caring for himself" is immediately followed with the further language "and while in that condition, which condition of the decedent was known by the defendant," he was permitted to leave the train, etc. While it is not stated in exact language that decedent was incapable of caring for himself because of being in an intoxicated condition, yet we think that the allegations are equivalent to that statement or mean the same. The phrase "while in that condition," evidently has reference to his intoxicated condition. Furthermore, there is a general allegation that the decedent was run over by appellant's freight train through and by the negligence and carelessness of the agents and employees of appellant. We think the court properly overruled the demurrer to the petition.
It is next argued that appellant's motion for a peremptory instruction should have been sustained because appellant was not guilty of negligence in permitting the decedent to leave the passenger train at Agawam Station, or, that it failed to discharge any legal duty it owed to him as a passenger. This calls for a review of the evidence. John Dyer testified that he saw the deceased at a restaurant in Winchester about thirty or forty minutes before train time, or about 11:30 p. m., and that he was drunk or was staggering and talking like a drunk man; a few minutes after 12 o'clock he saw decedent at the station where he got on the train and that he was staggering "a right smart." He asked decedent if he wanted to go out home and decedent said "I've got my ticket bought," and the conductor of the passenger train, who was present, put his hand on his shoulder and said "I will take care of you." The decedent then walked up the steps onto the train.
Claudie Bush, who rode the passenger train from Winchester to Agawam, testified that he got off the train at the station where the highway crosses the tracks and he saw a man, whom he did not recognize at night, get off the train on the same side he got off back about 35 or *620 40 feet and the man was "kindly staggering." He said this man went towards the Ragland gate, which was on the east side of the railroad tracks near the location of Charley Todd's residence, for whom decedent had been working; he then turned and came back toward the Agawam tunnel which was slightly north of the point where he got off the train, or back toward Winchester. While Bush did not identify the man as being the decedent, yet both parties argue their respective sides of the case upon the theory that the man whom Bush saw get off the train was the decedent. This was the last that was seen of the decedent, so far as the record discloses, until after he was run over by the freight train moving in an opposite direction from the passenger train an hour or more later.
No member of either train crew, passenger or freight, testified in the case and there is no evidence as to how the accident happened. Gip Abney, a section laborer for appellant, who lived in a section house about one mile south of Agawam Station, testified that on the morning of August 17 he was called by some one to come to Agawam Station; he got on an engine and went to Agawam and learned that a man had been killed and he saw decedent lying length-wise on the tract between the rails under the train and one leg was cut or pulled off; that he was still alive but never regained consciousness or spoke. He said they cut the north section of the train and pulled it up the track and then pulled the car under which decedent was lying from over his body. It is argued in brief for appellee that the conduct of appellant in pulling the car over decedent's body was an act of negligence which might have inflicted further injuries on him resulting in his death. But there is no evidence to show that additional or further injuries were inflicted on decedent by pulling the car over his body, nor could the jury have found for appellee on that phase of the case because the only question of negligence submitted to the jury was in respect to the intoxicated condition of decedent and the duty the passenger train employees owed to him and the contributory negligence of the decedent, and the case was submitted to the jury upon those issues only.
It is the established rule that it is only when the intoxication of a passenger is such as to render him helpless or incapable of taking care of himself that extra care is demanded from the trainmen to prevent injuries *621
to him, but the mere fact that a passenger is drinking or under the influence of intoxicants is not enough to put upon the trainmen the extra duty of giving him more care than to other passengers. Louisville. N. R. Co. v. Mudd's Adm'x,
In the Phelps case, supra, Thomas C. Phelps, the plaintiff in that action, and his brother and another man, boarded the train at Nicholasville, Kentucky, for Irvine, Kentucky. It appears from the evidence as set out in that opinion that Phelps was considerably intoxicated when they boarded the train and became so disorderly that the conductor had to eject him from the car which he entered and took him to another car. Phelps' brother, who testified for the plaintiff, when asked about his brother's condition with respect to being intoxicated, said [
Later on in the conductor's testimony he said that Phelps' conduct became such that he and Phelps' brother *624 took him to another coach or car. After reviewing the evidence, the court said: "There is, of course, no room for doubt that Phelps was under the influence of liquor; but, from a careful consideration of the whole evidence, our opinion is that he was not so helpless or incapable of taking care of himself as to put on the conductor the exercise of that degree of care that would have been required if he had been helpless or incapable of taking care of himself. He was noisy, disorderly, offensive, and insulting, as a great many drunken men are; but a man under the influence of liquor might do any or all of these annoying and objectionable things, and yet be capable of taking care of himself to such an extent as not to put on the conductor or trainman the duty of looking after his safety.
"The law applicable to a case like this was declared by this court in Louisville, H. St. L. R. Co. v. Gregory's Adm'r,
The Gregory case is like or similar to the other two cases, supra, with respect to the degree of intoxication of the plaintiffs in those respective actions, and the court held that the company was not guilty of negligence or responsible for the accident resulting in Gregory's death and that his death was solely due to his own carelessness or negligence. *625
In the case at bar, the only evidence as to the decedent's state of intoxication was that he was staggering when he appeared on the platform at Winchester and also when he got off the train at Agawam. It is shown by the evidence of Dyer, who saw decedent board the train at Winchester, that he walked up the steps onto, the train unassisted and, according to the evidence of Claudie Bush, he got off the train at Agawam unassisted, though staggering, and start toward the Ragland gate which was in the direction of the home of Charley Todd, for whom he was working. He had sufficient presence of mind and intelligence while at Winchester to purchase his ticket to Agawam, the place he desired to go, and also knew when he reached Agawam Station. There is no evidence of any misconduct or any indications of a high degree of intoxication, or that his state of intoxication was such that be required assistance in any respect. The mere fact that a man under the influence of intoxicants may stagger is not evidence of such a degree of intoxication as ordinarily would render him helpless or incapable of caring for himself. It is commonly known that a moderate degree of intoxication may cause some people to stagger but at the same time have their presence of mind and be mentally capable of caring for themselves.
It is insisted for appellee that decedent was permitted to get off the train at Agawam at a dangerous place. However, we find no evidence tending to show that the place where he got off the train was dangerous or unsafe in any respect. He got off on the platform prepared for that purpose and where other passengers got off. It is said that there are deep ditches, embankments, etc., bordering or near appellant company's right of way near Agawam Station but it is not shown that such embankments or ditches are on the right of way, but on the contrary they are off the right of way, a condition which is not under the control of appellant company. Decedent lived near Agawam Station and was acquainted with the terrain surrounding the company's tracks at that place. We think the evidence falls short of establishing that decedent was in such a state of intoxication as to render him helpless or incapable of taking care of himself and did not tend to prove that his condition was such that the trainmen should have anticipated that after he got off the train on the platform in a place of safety he would go onto the railroad tracks and be run *626 over by a train passing later in the night. It is not shown that any other train was on the side tracks or approaching that station at the time decedent got off, or any condition which imposed upon the company the duty of furnishing him a guard to guide or direct him beyond the railroad premises. It may be true that his state of intoxication rendered him less capable of protecting himself from accident or injury than he otherwise would be, yet, as said in the Mudd case, he must take the consequences of his own recklessness and the company will not be charged with the duty of taking especial care of him. It is our conclusion, therefore, that the evidence fails to show any breach of duty or negligence on the part of appellant's employees in charge of the train and the court should have sustained appellant's motion for a directed verdict in its favor. These conclusions make it unnecessary for us to pass upon other questions raised, till of which are reserved.
Wherefore, the judgment is reversed and remanded for proceedings consistent with this opinion.