124 Ky. 846 | Ky. Ct. App. | 1907
Reversing..
This is an appeal from a judgment of the lower court entered upon a verdict awarding appellee $300 damages for injuries sustained in alighting from appellant’s passenger train. The recovery was had upon the ground that appellant’s agents in charge of the train were guilty of negligence in starting it without notice to appellee, and without reasonable time or opportunity for her to get off the train before it got in motion. The answer contained a traverse and pleaded contributory negligence on the part of appellee ; the latter plea was denied by reply. The accident occurred at Cave City, where appellee had gone with her two grandchildren to put them, aboard appellant’s train that they might be carried to their mother in Louisville. According to appellee’s own testimony, when she got to the depot with her grandchildren, she bought of appellant’s ticket agent, Curd, a half-fare ticket for one of them, but got no ticket for the other, as, under appellant’s rules, it was entitled to free transportation. When the train arrived and stopped at Cave City, appellant took the children into thie apartment of the coach reserved for colored passengers, where they belonged, but, finding the seats taken therein, she led the children into the smoker’s section of the coach, and, upon reaching the first vacant seat, discovered that the train was in motion, whereupon she at once deposited their baggage, consisting of two baskets and a parcel, and leaving the children, hastened to the platform of the coach, from a step of which, though the train was still in motion, she jumped to the depot platform, thereby breaking the bones of .one of her ankles.
It is appellee’s contention that appellant did have notice of her entering the car and the purpose for which she did so, and that, with such knowledge, its servants in charge of the train started it without notice to her,, and also without stopping it the customary or reasonable time. The alleged notice of her purpose in entering the car, she claimed, was given to Curd, the ticket agent, when she bought the half ticket for the older of the two children. She testified that the children were then with her, and were known
The- evidence failed to show that the conductor or brakeman were neglectful of their duties-. The former,
It is not claimed that appellant’s servants in charge of the train knew, or by the.exercise of ordinary care could have ¿nown, of appellee’s purpose to jump therefiom, in time to stop- the train, and thereby prevent her injuries.
It follows from, what has been said that the instructions given by the court were altogether errcneous.
Judgment reversed, and cause remanded for a new trial and further proceedings consistent with the opinion.