Louisville & Nashville R. v. Ricketts

96 Ky. 44 | Ky. Ct. App. | 1894

JUDGE LEWIS

DELIVEBED THE OPINION OE THE COUBT.

Appellee brought this action to recover of appellant damages for personal injury done under the following circumstances: Being a passenger on a railroad train that arrived from Louisville at Lebanon, the place of his destination, about 11 p. m., he, instead of getting from it upon the depot platform on the left, descended to the ground on the right side of the track, where there were no lights kept or other arrangement made for reception of passengers, and in going towards the street usually traveled to and from the depot, he stumbled over an unseen water-box, and, falling, he was so close to the railroad track his left arm extended across one of the rails, and was run over and badly injured by wheels of the train, then moving away from the depot.

On the first trial the plaintiff recovered a verdict, but upon appeal to this court the judgment was reversed (see 93 Ky., 116), and the case is again before us for revision of a pcond verdict and judgment in favor of the plaintiff.

In the former opinion of this court it was held that, where a railroad company “has a platform and other facilities for entering and leaving the cars with safety on the depot side of the track, the failure to have the opposite likewise prepared as a place for entering and leaving the cars, can not be regarded as negligence. It may select and adhere to such arrangement of its depot and platforms as it may see fit, if those made are safe and commodious.” This further language was used in the opinion: “Here the company’s platform was on the left hand side of the track, and it was safe and commodious, and well lighted, and the appellee, by the use of ordinary prudence, could have left the cars and depot grounds with reasonable safety had he taken the platform side; but he preferred to leave the cars by the right hand side of the track, where there was no platform and no lights, and the company, not being bound to erect a platform on that side, and keep it lighted in the night-time, having erected a safe and commodious platform on the other side, which was well lighted, his thus leaving the cars was at his own risk and peril.”

The facts shown by the present record are not materially different from those before us on the former appeal, and consequently what was then decided must be now adhered to. The lower court, on the last trial, gave to the jury the following instruction: “If the preponderence of the evidence shows that by reason of the unknown, if unknown, to plaintiff, adoption of the platform on the left hand side in lieu of that on the right hand side, as the exclusive platform for use of passengers, and the inadequate lighting or illumination of the left hand side of the track at the time of the injury, to admonish plaintiff the left and not the right hand side was the exclusive platform for the use of passengers, the law is for the plaintiff for any damages resulting to him by reason qf such failure by defendant, and so the jury should find; otherwise for the defendant.”

That instruction seems to us not only a departure from the principles of law laid down in the'former opinion, but misleading as to the facts proved. It is true, as the former as well as present record shows, that there was formerly a platform for use of passengers on the right side of the railroad track. But several years prior to 1890, when plaintiff was injured, the one on the left side was substituted, and has since been the only one used. But whether in language of the instruction, adoption of the platform on the left hand side in lieu of that on the right hand side was unknown to plaintiff, is not material; the true inquiry for the jury being whether there was, at the time, a .safe, commodious and well lighted platform on the left side, by which the plaintiff could, using ordinary prudence, have left the cars and depot grounds with reasonable safety.

The plaintiff himself testifies there was no light at all upon the right side, and as soon as he touched the ground, found, if unknown to him before, that there was no platform there; and, independent of other features of the case, it was negligence on his part to attempt to leave the depot ground by going ¡so’ near as he did to the train that he knew would ¡soon be in motion.

On the other hand the evidence makes it too plain for dispute that if plaintiff did not know, the exercise of ordinary care would have enabled him to discover the platform for use of passengers was on the left side of the train. All the passengers stopping at Lebanon got out on that side, including his traveling companion ; the conductor and brakemen, with lanterns, were on that ■ side; baggage was taken out on that side. Besides, the platform was unusually commodious, being in front of a railroad hotel, and not only was there ¡a gas-lamp at each end of it, but there was in one portion of the hotel a telegraph office and in the other baggage-room.

It seems to us, as said substantially in the former opinion, that plaintiff’s leaving the cars in the manner he did was at his own peril, and the evidence before us shows no cause of action against the defendant.

Wherefore, the judgment is reversed, and cause remanded for new trial consistent with this opinion.