Louisville & N. R. R. v. Jordan

112 Ky. 473 | Ky. Ct. App. | 1902

Opinion op the court by

JUDGE BURN AM —

Reversing.

This action was brought in the Hopkins circuit court by Mattie Jordan, an infant eight years of age, by next, friend, against the Louisville & Nashville Railroad Company. She alleged that she took passage on one of the defendant’s trains at Mortons Gap, a station in Hopkins county, for Nashville, Tenn., placing herself under the special care of the conductor, and that when the train arrived in Hopkinsville, Ky., the defendant, through the gross negligence of its servants in charge of the train, “wrongfully, forcibly, ■ and in violation of her rights as a passenger, put her off of the train at Hopkinsville,” Where she 'was detained for several hours, awaiting the arrival of the next passenger train for Nashville, and that she did not arrive at the point of her destination until about 2 o’clock at night, — several hours after the time when she would have arrived if she had been carried through on the train on which she took passage, — and that by reason thereof she had suffered great mental and physical pain ■and anguish, and prayed judgment for $1,500. The defendant by its answer, alleges that the mother of plaintiff resided in Nashville, Tenn., and that plaintiff resided with her, and that by reason thereof the Hopkins circuit court had no jurisdiction, of' appellee’s alleged cause of action. It further denied that it put plaintiff off its train, either forcibly or otherwise.' A trial upon the issues resulted in a verdict for appellee for $250.

Appellant moved for a new trial upon several grounds: First, because Thomas Warren, the next friend in whose name the suit was instituted, was permitted to testify that when he purchased the ticket at Hortons Gap he informed the local ticket agent that plaintiff was a small child, and asked him if there would be any danger of sending her by herself, and that he answered, “No,” and informed him to “put her on the train, and tell the conductor where to put her off at, and that she would get there all right,” and that he told him, so as to avoid any mistake, to write on the ticket the name “Links” (this being the station in Nashville where she wished to get off), and that when the train came in he put plaintiff on, and told the conductor to put her off at Links, and that he said “All right.” Another ground relied on for a new trial is that the court erred in allowing the plaintiff, at the conclusion of the testimony, to file an amended petition in which it was alleged that the defendant, at the time and place mentioned in the original petition, and under the circumstances therein stated, negligently put her off the' train at Hopkinsville, “and negligently suffered and permitted her to get off the train at that place,” and that the court instructed the jury that if plaintiff’s- servants- in charge of the train put plaintiff off, or negligently suffered • her to get off, the train at Hopkinsville-, they should find for plaintiff. And they further complained that the damages allowed by the jury were excessive, -and given under the influence of passion and prejudice. The motion embraced, in addition to the grounds recited, several others, which we do not deem it important to consider.

The facts developed by the testimony are, in substance, that the mother of appellee, Hattie Jordan, was a widow residing in Nashville, Tenn.; that some time in July she sent Mattie to the home of Thomas Warren, who had married her older sister, • and resided in Hopkins county, to live with them and assist in taking care of their baby; that, after residing with her sister for about two months, her mother wrote to Mrs. Warren to send her home; that, in conformity with the request, Warren bought her a ticket and pat her upon the regular passenger train for Nashville, which left Mortons Gap at about half past 4 o’clock in the afternoon on the 16th of September; that he called the attention of the conductor of the train to her, and requested that he should see that she was put off at Links Hotel, a station in Nashville; and that the conductor assigned her to a seat, and promised to put her off at the station indicated. The plaintiff in response to the question as to how she came to stop at Hopkinsville, responded “‘that the 'conduct- or, who wore a blue suit of clothes, put her off, and also took off her basket, containing the clothes which she was carrying;”-but she failed to identify the conductor, when her attention was called to him, as the man who put her off at Hopkinsville, and testified on cross examination-that her sister had told her to say that she had been put off the train by a man Who wore blue clothes. Her testimony is hazy and unsatisfactory throughout. The conductor testifies that Warren brought the plaintiff on the train when he arrived at Mortons Gap, and told him that he wanted her put off at Links station, in Nashville; that soon after leaving Hopkinsville, he discovered that she was not on the train, and that he stopped the train at the first station, and sent a telegram to the agent at Hopkinsville, asking him to take care of plaintiff and send her to Nashville on the next train, and that he received a message from the depot -agent that he would do so; that when the train arrived at Hopkinsville a number of people got off, among ■whom were several children, but that he did not notice that plaintiff was one of them; that-he did not promise to take any charge of plaintiff, except to see that she was put off at Links station, in Nashville; and that he assigned her to a seat, and told her to sit there until they arrived in Nashville. It further appears that appellee was put in charge of the station policeman during her stay in Hopkinsville; that he took her. to his residence, near the depot, and gave her her supper; and that she played with his children some three or. four hours, until the arrival of the next train, which took her to her destination. Beyond Lhe inconvenience and annoyance of the delay, it appears that no harm occurred to the plaintiff. There is nothing in the testimony which conduces to show that there was any understanding or agreement, either with the ticket agent or the conductor, that plaintiff should receive any special attention or care whilst on the train. Neither of them were informed by Warren that plaintiff did not have sufficient intelligence to occupy her seat during the journey. All that was asked by Warren, or promised by the conductori was that he would see that appellee was put off at. Links station, after the arrival of the tiain at Nashville. This was important, because there were two stations at Nashville and the friends of appellee expected to meet .her at Links station. The law required of appellant that it should exercise the highest degree of care to safely transport appellee to her point of destination. But this duty did not require that appellant's conductor should act as a special attendant to the plaintiff during the journey, to see that she did not leave her seat. He had a right to presume that the friends and relations of appellee would not have consented to her going alone upon such a journey unless she was possessed of sufficient intelligence to obey the instructions given lier to occupy her seat until her destination was reached. His duty was to . see after the comfort and safety of the passengers generally, and not one in particular. See Sevier v. Railroad Co., 61 Miss., 8, 48 Am. Rep., 74; Railroad Co. v. Kendrick (Tex. Civ. App.) 32 S. W., 42; Nunn v. Railroad, 71 Ga., 710, 51 Am. Rep., 284; Gage v. Railroad Co., (Miss.) 21 South. 657.

The original petition, relied for recovery solely upon the ground that the defendant had forcibly ejected herí from its train, and her testimony was to this effect; and it was error, after the evidence was all in, to permit an amendment alleging that the defendant had negligently permitted her to get off the train. There was no testimony on which to base such an amendment, and, if there had been, it would not have supported a claim for damages against the defendant. And the verdict for $250 was grossly excessive, in any aspect of the case. No harm came to the plaintiff. She was only detained on the journey for a few hours, and the mental distress incident thereto in a child of that age was not great, and was certainly much lessened by the fact that during her enforced stay in Hopkins-ville she enjoyed the society of children of her own age in the hospitable home of the station policeman.

We deem it unnecessary to decide the question of jurisdiction relied on, as, under former rulings of this court, there can be no doubt that, upon the return of the case to the lower court, it now has jurisdiction to determine the issues raised by the pleadings.

For the reasons indicated, the judgment is reversed, and the cause remanded for i>roceedings consistent with this opinion.