141 Ky. 538 | Ky. Ct. App. | 1911
Opinion of the Court by
Reversing.
These two appeals present law and facts growing ont of the same transaction, and will be disposed of together.
The appellees, who are colored people, live at Horse Cave, a station on the appellant company’s line of road. They, and several others, in September, 19.09, desiring to attend a base ball game at Bowling Green, also on appellant’s line of road, selected Shelby Beard and others of their friends to make arrangements with the railroad company for transportation. The schedule of the passenger trains between' Bowling Green and Horse Cave that made regular stops at Horse Cave would not enable the party to go to Bowling Green, and after seeing the
In its answer, the company after traversing the averments of the petition, pleaded (1) that the agent at Horse Cave had no authority to agree with Shelby Beard or others that he would have train No. 2 stop for the purpose of letting them off at Horse Cave, (2) that they were permitted to get on this train at Bowling-Green under an agreement with the conductor that they would all leave the train at Cave City, (3) that it had no connection with, and did not instigate, the arrest or prosecution of any of the parties for disturbing the peace at Cave City.
Upon a separate trial before a jury the damages in
We are asked to reverse the judgments entered upon these verdicts for error of the court in refusing to direct a verdict in favor of the company — for error in giving instructions — in admitting incompetent evidence, and because the damages allowed are excessive.
But, before taking up the errors assigned, it is proper to state that the agent denied that he agreed he would have train No. 2 stopped and says that he told Shelby Beard, the leader of the party, to see the agent and telegraph operator at Bowling Green and try to procure one of them to get an order to stop the train, as he had no authority to stop it and could not get an order to have it done. It also appears that Shelby Beard did go to see the agent as well as the operator at Bowling Green, but neither of them made any effort to get an order- to have the train stopped. When the train came into Bowling Green, and the party went to get on, the conductor testifies that he asked them where they were going and they said “Horse Cave,” and he re-replied “this train doesn’t stop at Horse Cave and you cannot get on,” and they then said “Well, we will go to Cave City.” And with the understanding that the party would leave the train at Cave City, he permitted them to get on. While members of the party testify that they did not tell the conductor they would get off at Cave City, and that they got on the train with the belief and expectation that it would stop and let them off at Horse Cave. It is also shown that Shelby Beard had one •ticket for the entire party, from Horse Cave to Bowling Green, and return, and that the conductor took up this ticket. We may add that the evidence upon this point leaves the impression that the conductor knowing that his train would stop at Cave City, permitted the party to get on, believing that they would get off at Cave City, and we may also observe that Shelby Beard and the well behaved members of the party did get off at Cave City without objection or resistance.
Taking up now the question of the authority of the agent at Horse Cave to make the agreement or arrangement relied upon by appellees that they could return to Horse Cave from Bowling Green on train No. 2, we may say at the outset that there was sufficient evidence to authorize a submission of the case on this issue to the jury and to sustain a finding that such an agreement was
The next question to be considered is, did the court err in instructing the jury that they might allow punitive or exemplary damages? Whether this instruction was proper or not depends upon the manner in which the appellees were ejected from or required to leave the train at Cave City. That the company was liable to-them for compensatory damages, if the jury believed the-agreement heretofore mentioned was made with-the ticket agent, we have already decided. This measure-of damages they were entitled to on account of the mere-act of ejection, witho-ut reference to how it was accomplished. But, punitive damages should not have been-allowed, unless the conductor used more force than was necessary to require appellees to leave the train, or unless his conduct, manner or language was insulting, or abusive, or violent or threatening, or h'is behavior manifested a wanton and reckless disregard of the rights of appellees or a disposition to oppose or humiliate them. L. & N. R. Co. v. Ballard, 88 Ky., 159; Memphis, et al. R. Co. v. Nagel, 97 Ky., 9; Southern R. Co.
The court in each case instructed the jury that: “If they believe from the evidence • that the defendant’s agents or servants • in charge of said train assaulted plaintiff or brandished or menaced her with a pistol, or wilfully abused or threatened her in a violent or insulting manner in the presence of the other passengers, they may find such additional damages by way of smart money as they may deem proper.”
If the evidence justified the giving of this- instruction, it is not objectionable. It appears from the evidence that when the train reached Cave City the conductor told this party that they must get off. In obedience to his request, some of them did get off, others refused, saying that their ticket entitled them to- be carried to Horse Cave and they were not going to leave the train at Cave City. The efforts of the conductor to force those who declined to leave the train to get off, created considerable confusion and disturbance. And several of them testify that he used very abusive and insulting language, and in addition to- this drew a pistol and threatened to shoot some of them. But, assuming that the conductor acted 'in the manner indicated, we do not think his conduct entitled these appellees to punitive damages unless his manner or conduct towards them was insulting, threatening or abusive. They are not entitled to recover for insults or humiliation put upon other passengers. Their rights- of recovery should be confined to what happened to them. It would be manifestly unjust to award these appellees exemplary damages on account of the misconduct of the conductor towards other passengers, as those other passengers may lave suits against the company to recover damages for the injuries to them. Limiting then the right of appellees to exemplary damages to their treatment' by the conductor, we find that Mamie Scott testifies that when the conductor requested the party to leave the train, she got off in obedience to his orders. She does not say that before or while she was alighting from the train the conductor said or did anything to her that was rude, offensive, insulting or threatening. But, it appears that after she had left the train and while she was standing on the station platform, the conductor and other members of the party became involved in a controversy or
Tiny Clark testifies in substance that when the train arrived at Cave City the conductor told them to get off and that she said she didn’t intend to get off and would make the conductor pay for putting her off, and that he said: That was all right; and pushed her down the steps; that he didn’t say anything else to her.
• "Whether the act of the conductor in pushing a passenger out of a car or from the train Would entitle the passenger to exemplary damages depends very largely upon the circumstances surrounding the parties at the time and the manner in which the force was used. Under some circumstances it might well be considered rude and offensive to push a passenger, who was being ejected down the steps or at all. Under other circumstances the conductor might not be using more force than was reasonably necessary to eject the passenger from the train. If the conductor has the right to eject a passenger, then he has the right in a decent orderly way to take hold of the person of the passenger for the purpose of requiring such passenger to leave the train, if the passenger refuses otherwise to do so. And so we are of the opinion that under the evidence the conduct of the conductor in ejecting Tiny Clark from the train was not so rude or offensive as to authorize the recovery of more than compensatory damages. The conductor on this occasion was confronted by an unusual situation. Acting in the line of his duty he had the right to require these people to leave the train. Some of them willingly did so, others refused, and at least some of those who refused were disorderly and under the influence of liquor. If, in an
“It seems to us that this instruction would probably lead the jury to believe that they might find punitive damages in a case of mere ordinary negligence. We are riot inclined'to the opinion that under the testimony in this case ordinary negligence could or should be considered gross negligence. And in as much as the jury has separated its finding as to compensatory and punitive damages * * * we are of opinion that the ends of justice will be subserved by reversing so much of the*549 verdict and judgment as allows any punitive damages, but allowing tbe verdict and judgment to tbe extent of $13,500 to stand. The judgment appealed from is, therefore, reversed, and the cause remanded, with directions to the court below to set aside the $5,000 verdict and judgment for punitive damages, and to render judgment only for $13,500.”
In reference to the admission of incompetent evidence, it may be said that there was some evidence permitted to go to the jury relating to the arrest of appellees for disturbing the peace in Cave City, although in an instruction the jury were properly told to disregard this evidence, as there was no evidence connecting the company with the arrest. However, upon another trial of the case, no evidence upon this question should be admitted unless it is sufficient to show that the company procured the wrongful arrest.
For the error indicated, the judgment in each ease must be reversed, and it is so ordered.