169 Ky. 330 | Ky. Ct. App. | 1916
Opinion of the Court by
Reversing.
The appellee, Nancy Ashley, intending to take passage upon a train of the appellant, Louisville & Nashville Eailroad Company, from Frankfort to Pleasure-ville, obtained a ticket and proceeded to the train, which was standing in the yard of appellant at Frankfort. She accosted a brakeman, who was standing near the train, and informed him of where she desired to go, when he directed her to take the rear coach of the train. This was a car of the Pullman Company, and when she arrived at the car she informed the porter in charge of the car of her destination and inquired of him, if that was the car that she should enter and he directed her to get into it. She was accompanied by a young woman, who, also, entered the car with her, where they took seats in cháirs, near the middle of the coach. Neither of them was intending to take passage in the Pullman, and did not know that an extra fare would have to be paid by them for riding in the car. They had each ridren on trains over this road previous to this time, but had not occupied the Pullman or chair car, but the coach which they had always occupied was the rear coach upon the train, which position in the train was occupied by the coach they were now occupying. The appellee’s account of what transpired thereafter, and which resulted in an injury to her arm- and shoulder, and in which she was corroborated by the woman who accompanied her, was substantially as follows:
When the train had passed the water tank, a short' distance to the west of Frankfort, and was running at a high rate of speed, the porter came through the car and demanded of appellee her fare, when she presented him the ticket which she had obtained for passage on the train, and he said to her that he did not want that, but that she would have to pay “a quarter” extra for riding in the car. She said that she did not know that, when she came into the car and that she was only going
This suit was brought by the appellee to recover the damages, which she alleged she had suffered, and alleged that hex injuries were caused by the negligence of the servants of appellant.
The appellant denied the negligence and the injuries, and plead, as a further defense, the contributory negligence of appellee.
The appellant’s motion for a new trial was overruled and it has appealed.
The appellant relies for a reversal of the judgment upon the grounds: (1) That there was no evidence of any negligence upon the part of appellant; (2) the damages allowed are excessive, and given under the influence of passion and prejudice; (3) errors of the court in admitting incompetent evidence for appellee, and rejecting competent evidence offered for appellant; (4) errors' of the court in giving instructions to the jury.
At the close of the evidence offered by appellee, and at the conclusion of all the evidence, the appellant moved the court for a direct verdict, by the jury, in its favor, blit both motions were overruled and properly so. It is not claimed that any negligent act, in the operation of the train, resulted in or caused the injuries to appellee. The appellee, however, was not a trespasser nor an intruder upon the train. She had purchased a ticket, which entitled her to ride upon the train, and she presented this ticket to the porter when her fare was demanded. She had gone into the coach, to which she was directed to go by the brakeman and by the porter who was in charge of the Pullman car, she had informed them of her destination, and asked for information as to which coach she should enter. It is true, that she did not inform either of them that she did not desire to ride in the Pullman car, but neither of them, before directing her, according to her evidence, inquired of her as to whether she desired to go in such coach. The porter testified that he made inquiry of her as to whether she desired to go into the Pullman, but she denies this. Conceding that she had no right to ride in the Pullman car without paying or tendering the extra fare required, and that she could be required to remove from that car into another upon her refusal to pay the fare, there is no doubt but that she entered the coach by mistake, and the servants of the railroad, in removing her from the coach, were required to use ordinary care for her safety, as to the time and place and manner of her removal and if there was a failure to exercise such care, it was negligence. When she was commanded to leave the coach and go into another, it was an expulsion of her from the coach, and the same rule, it seems, should , apply to
Upon the trial a photograph was offered in evidence, which it was proven showed the condition of appellee’s, arm, four or five days after the injury. This was objected to and appellant complains of the ruling of the-court permitting it to he introduced in evidence. The-complaint is without merit. The proof is to the effect, that it truthfully represents the appearance of the arm.
It is, also, complained that the court refused to permit the witness, Lena Perkins, to answer certain questions propounded to her upon cross-examination. There were no avowals made as to what the answers to the questions would be if she had been allowed to answer, anch hence, it can not be said whether the court was in error or not in excluding the proposed answers.
Appellant complains of instruction “1” given by the court to the jury, because, as it insists, it does not require the jury to find that appellant was guilty of negligence, which was the cause of appellee’s injury, before it could find a verdict for appellee. While the instruction is not aptly drawn, it is not defective for the reason alleged. It requires, before a verdict could be had for appellee, that the servant of appellant should have requested appellee to leave the coach and go into another, while the train was moving, and 'that the servant of appellant, in charge of the coach and who made the request knew or by the exercise of ordinary care could have known, that to require the appellee to move from her place while the train was moving would probably be attended with danger to her. If the servant required the appellee to attempt to go from one coach to another, when, under the circumstances, he knew or 'ought to have known that it was dangerous to appellee, to do so, this was negligence upon the part of appellant. The instruction was substantially correct, and the jury could not have been mislead as to its duty under it.
Instruction “2” defined the measure of damages, in the event of a recovery by appellee. The measure prescribed is correct under the facts proven in this case, but appellant complains that the instruction did not limit the jury, in its finding to the damages shown by the evidence. While in the light of the other instructions given we would not reverse the judgment on account of the defect complained of, upon another trial the instruction should be so written as to free it from such' defect. Brenner & Seiler v. Renner, 6 R. 512; Long, &c. v. Aldridge’s Admr., 5 R. 180; B. & O. S. W. R. R. Co. v. Sheridan, 31 R. 109.
The contention is made that the damages allowed are excessive and superinduced by passion and preju
There is no evidence, which would entitle a recovery ■of punitive damages in this case and, the measure of compensatory damages for a personal injury, where death does not ensue, is the expense of the cure, loss of 'time, and fair compensation for physical and mental suffering and for any permanent reduction of the power to earn money. L. & N. R. R. Co. v. Hall, 115 Ky. 579; L. & N. R. R. Co. v. Johnson, 145 Ky. 485; Carson v. Singleton, 23 R. 1626; C. P. & R. Co. v. Kuhn, 86 Ky. 578; Parker v. Jenkins, 66 Ky. 587. The court, in the instant case, correctly confined the recovery to compensatory damages, for the physical and mental suffering which appellee had endured and which it was reasonably certain she would suffer in the future, as the proximate results of the injury. We are constrained to the conclusion that the damages allowed are grossly excessive, as they strike the mind at first blush as having-been superinduced by passion or prejudice.
The judgment is therefore reversed and the cause remanded for proceedings consistent with this opinion.