176 Ky. 569 | Ky. Ct. App. | 1917
Opinion of the Court by
Affirming.
The appellee, Mrs. Bessie Dixon, while waiting at the station of the Louisville & Nashville Railroad Company at Elizabethtown, to become a passenger on its train to Hpton, was injured by falling through a trapdoor on a porch which had been left open by appellant’s servant, and she sues to recover damages for this injury. The depot platform extended along in front of the depot and next to the tracks and was made of fine crushed limestone. At one end of the depot and running at right ^angles with the platform was a porch, the floor of which was wood and joined flush with the platform. This porch was separated from the platform by two small wire gates which reached the entire length of the porch. One of these gates entered upon the porch proper, while the other entered the basement through 'a trap door in the porch floor, and this latter gate and trap door were surrounded by a little fence about three
Upon a trial in the circuit court, Mrs. Dixon was awarded twenty-two hundred dollars damages, and a motion and grounds for new trial having been overruled, the railroad prosecutes this appeal.
It insists:
First. That the trial court erred in refusing to peremptorily instruct the jury to find for it.
Second. That the damages are excessive.
Third. That the court gave the jury erroneous instructions and erred in refusing instructions offered by defendant company.
The railroad company interposed a demurrer to the petition and now insists that the demurrer should have been sustained by the lower court. The defect in the petition attempted to be reached by the demurrer is, its failure, as appellant claims, to allege that she was injured while on the platform, or while attempting to use the platform or any place which the defendant company provided for the use of passengers at said station. It is true that the petition does not allege that the trap door was in the platform of the depot, but avers that it was in the porch floor of the depot, which was -adjacent to and flush with the platform and “the said defendant (company) negligently and carelessly had the gate opening on to said porch, open and the cellar door immediately in front thereof, and which was flush with the porch floor, open and unguarded and negligently and carelessly failed to have its premises and the said porch and plat
The petition alleges facts, showing the negligence of the company and its failure to guard the trap doors, and this considered in connection with the proximity of this dangerous hole in the porch floor to the platform and the duty the company owed to .the traveling public to keep all portions of its grounds to which passengers would naturally and reasonably be expected to resort, in a reasonably safe condition, fully justified the trial court in overruling the demurrer of the appellant to the petition. However this may be, the rule is, that after verdict or judgment the pleading is liberally construed, whereas before judgment the pleading is strictly construed against the pleader. Any formal defect in pleading is deemed cured by verdict or judgment, and the pleadings here, if defective, are cured by the verdict and judgment.
It is a well-recognized rule that it is the duty of a railroad company to have and keep its depot premises, buildings and grounds to which passengers will naturally and ordinarily resort or use, in the absence of being warned not to do so, in approaching the carrier’s station, in waiting for the arrival of its trains and in getting on or off the same, in reasonably safe condition. Thompson on Negligence, 3rd vol., sec. 2691, in speaking of the duties of railroad companies, says:
‘ ‘ The duty extends to other portions of their premises besides station platforms. Such carriers are under obligation to keep in a safe condition all portions of their platforms and approaches thereto to which the public do, or would naturally resort, as well as all portions of their station grounds, reasonably near to the platform, where passengers or those who have purchased tickets with a view to take passage on their cars, would naturally and ordinarily be likely to go. ’ ’
Mrs. Dixon had purchased her ticket and was waiting at the station to take passage upon the train which was then approaching. She then occupied the same attitude towards the company as a passenger and she had the right to rely upon the railroad company to properly perform the duties which it owed to passengers, to have and keep its depot grounds and premises as well as ap
The railroad company is not only under obligátion to passengers and those whom it invites on to its depot premises to have and keep the depot, waiting rooms and platforms reasonably safe, but it will not be permitted or allowed to maintain dangerous pitfalls so near to its platform as’ to endanger the safety of those having a right to be upon such platform, and escape responsibility for the consequence.
From the evidence presented in this case the depot platform and the porch floor adjoin and are flush with each other. It, therefore, would be unreasonable to say that a passenger waiting on the platform might not by accident, or inadvertence step through an open gate on to a porch in which a trap door is located. When the premises are not well lighted such an event is not unlikely. In the darkness the trap door in the floor could not be seen. An open gate is an implied invitation to enter, and since Mrs. Dixon, who had been a passenger at this depot many times before, had entered upon the porch through a gate, it was but natural that she apprehended no danger in so doing upon this occasion.
_ The railroad company urgently insists that since Mrs. Dixon was entering upon the porch of the depot for the purpose of allowing her child to urinate, that she was committing a nuisance upon the premises of the railroad company, and was, therefore, a trespasser; that she had no right to go upon the porch for the purpose for which she entered, and having no right there, she must suffer the consequence of her wrongful act. In support of this contention it cites the case of Louisville & Nashville Railroad Company v. Turner, 139 Ky. 730. Turner was a passenger on the train in the yards at Corbin, Kentucky. He went to the closet on the'train and found it locked, whereupon he asked the conductor to unlock it, but was informed by this official that it was against the rules of the company to unlock the closet while the train was standing at the depot. It was night time, and the conductor suggested that Turner could go on the outside of the train and attend to his needs. Turner did so, and while seeking a place fell into an open culvert close to the track on defendant’s premises. This court reversed the judgment for four thousand dollars, and ordered a peremptory instruction in favor of the railroad company, because Turner at the time of his injury was not shown
While the motion and grounds for new trial did not complain of the excessiveness of the verdict, it is insisted nevertheless, that the damages are excessive. Mrs. Dixon in testifying on her own behalf, said:
“I thought I was stepping in on the porch, and I ' stepped off in that hole, and I had the baby on my arm, and I grabbed as I went down, I suppose I grabbed to the railing or something, I just swung my whole body back to the step. . . . Well, at the time it tore that finger there where I caught hold and tore the leaders away from that hand and bruised that hand good deal. Must have struck the step, and this hip, I struck something as I went in, and that was that one. . . . Q. Did you strike your side? A. I struck it as I went down.
Dr. Riggs, a physician of twelve years’ experience, who attended Mrs. Dixon on the occasion of her injury, after testifying he had attended her previous - to that time on an occasion' of the birth of a child, and had observed no diseased condition, stated: “I first saw her on the night of the 23rd of.December or about that time, possibly that date. . . . Well, that night, I do not remember, possibly a little more complaint, but all I remember I noticed that night was her hand skinned and a part of this ligament on her right finger was possibly torn. ” '
“Q. When did you next see her? A. About two days later if I remember right. ... I found her coughing ’ constantly and a bruise on her hip and possibly below the knee, and a consolidated place in her left lung, complaining of her back and menstruating. ’ ’
The doctor further testified that he continued to attend Mrs. Dixon for some two months or more subsequent to the injury and that the affected condition of her lung and bowels was properly traceable to the injury which she received by falling into the trap door and that the injury which she sustained was permanent. It is evident that Mrs. Dixon suffered a very severe injury. Indeed, she wa's fortunate that greater injury did not result. The facts considered, wé do not regard the verdict of twenty-two hundred dollars as excessive.
It is next insisted that the instructions given by the trial court to the jury were erroneous. We have, however, examined the instructions and find them to be the
No prejudicial error is disclosed by the record, and the judgment must be affirmed.