123 Ky. 450 | Ky. Ct. App. | 1906
Opinion by
Reversing.
This is an appeal from a judgment of the Nelson circuit court rendered on the verdict of a jury, October 30, 1905, against appellant for $1,000. The petition alleges that the plaintiff, Annie Elizabeth Fowler, purchased a ticket from appellant’s agent at Bards-town, Nelson county, Ky., which ticket entitled her to passage on appellant’s trains to Hunter’s Depot, in
On the trial of the case the plaintiff proved that in October, 1904, she bought a ticket, for which she paid 11 cents, entitling her to passage on defendant’s train from Bardstown to Hunter’s, a distance of about 5
At the conclusion of the testimony the defendant moved for a peremptory instruction, which motion was overruled, and the court gave the following instructions to the jury: “(1) Although you may believe from the evidence that defendant’s conductor demanded plaintiff’s ticket, and that when said demand was made plaintiff failed or refused to produce her ticket or pay her fare; yet if you further believe from the evidence that said conductor was insulting in manner, words, or tone towards her, or that he rudely and roughly grabbed her by the arm while she was sitting in her seat, or used more force than was necessary to put her from the train (if any force was necessary for that purpose), you should -find for the plaintiff damages in any sum not exceeding $3,000, the amount sued for. (2) If the jury believe from the evidence that the defendant’s conductor demanded of plaintiff her ticket, and that on said demand being made the plaintiff failed, or refused, to produce her ticket or pay her fare, then said conductor had the right to eject her from the train, using no more force than was necessary to eject her from the train; and unless you believe from the evidence he used more force than was necessary to eject her from the train, or that he was rude, insulting, rough or boisterous in manner towards her, you should find for defendant. (3) If you believe from the evidence that defendant’s conductor in charge of its train was insulting in his manner, words, or tone towards plaintiff, or that he rudely and roughly grabbed her by the arm, while she was sitting in her seat, then you may, in addition to compensatory damages, award her punitive damages in any sum you may deem proper, not exceeding in all more than $3,000, (4) Nine or more jurors concurring may render a ver
The defendant objected to the giving of each of these instructions, and offered certain other instructions, which were refused by the court. The jury returned a verdict of $1,000 for plaintiff. Judgment was entered, and this appeal is prosecuted from that judgment.
Many errors are complained of in the motion and grounds for a new trial and in the bill of evidence. The court properly overruled defendant’s motion to strike from the record the amended petition, for in it plaintiff merely set out more fully her cause of action attempted to be set up in her petition; and as the petition as amended set up but one cause of action, the several motions by defendant to require plaintiff to elect which cause of action she would prosecute, and to make her petition more specific in naming persons who offered to pay her fare, should have been overruled. The facts set out in the petition as amended constituted a cause of action, and the demurrer should have been overruled, as it was. Where there is any evidence in support of the allegations of the petition, a peremptory instruction will not be given. In this case there was evidence to support the allegations of the petition, and the defendant was not entitled to a peremptory instruction.
The first instruction given by the court was confusing and misleading. In this instruction, if the jury should find that the conductor was insulting in manner, word, or tone toward plaintiff, or rudely or roughly grabbed plaintiff by the arm, or used more force than was necessary to put her off the train, then they should find for plaintiff damages in any. sum not exceeding $3,000 for ejecting plaintiff from the train. This is error highly prejudicial to the rights of the defendant company. Plaintiff’s right to re
Appellant urges with much earnestness that it was entitled to an instruction defining compensatory damages. "We are of opinion that such an instruction should have been given; but as appellant offered no such instruction, it cannot now be complained of that it was not given. Compensatory damages in this case is such sum as will compensate plaintiff for the loss of time, if any, and for the pain and suffering she endured, if any, by reason of undue and unnecessary force, if any, used by the conductor in ejecting her from the train; or the humiliation and mortification, if any, which she suffered because of the use of abusive or insulting language toward her by the conductor while ejecting her from the train.
"We are further of the opinion that the damages awarded in this case are excessive, due, perhaps, to the fact that the jury was not properly instructed as to plaintiff’s right of recovery.
For the reasons given, the judgment is reversed, and cause remanded for further proceedings consistent with this opinion.