150 Ky. 219 | Ky. Ct. App. | 1912
Opinion of the Court by
Reversing.
On November 1, 1910, Hattie Grimes, aged 64, took passage upon appellant’s morning train from Cincinnati, Ohio, to Cyntbiana, Ky. According to appellee’s testimony, shortly after leaving Latonia, Ky., sbe tried to open tbe door of tbe ladies’ toilet in tbe day coacb in wbicb sbe was riding, but found it locked. Sbe repeated tbe attempt several times, at intervals, but without success. Sbe reported the fact that tbe door was locked to a dining car waiter wiio passed through tbe
The conductor admits appellee went to him in the front passenger car and asked why the toilet door had not been unlocked, and says he told her it had been unlocked; that if it was not then unlocked it was because it was occupied by another passenger; that he directed her to the ladies toilet in the car they were then in, and that she made no. further complaint, and did not report to him her experience with the drunken man, or the untoward results. The waiter denied having any conversation with her; but upon this point she is strongly supported by the testimony of Mr. and Mrs. Holsclaw, who occupied a seat near the appellee and saw her talking to the waiter. Under this state of case Mrs. Grimes recovered a judgment for $1,250.00 damages, and the defendant appeals.
1. It is contended that the first instruction to the jury was erroneous because it required appellant, in the performance of its duty, to unlock the toilet rooms in each of the passenger cars and to keep them unlocked, except when occupied by passengers, until the train should arrive at or near Falmouth which was the next stop. The objection to this instruction is that it applied to the toilets of all the cars, and assumes that all of them were locked, when there is no evidence that more than one toilet was locked. While it is a general • rule that an instruction should not be given unless there is evidence upon which to base it, the instruction before us was not prejudicial to appellant’s substantial rights. It is drawn in general terms, and correctly defines appellant’s duty as to the toilets in the passenger cars.
2. The first instruction having permitted the jury to award damages for the discomfort and mortification suffered, appellant contends this was the full measure of appellee’s damages, and it was error for the second instruction to authorize a further and additional recovery for doctors bill and such mental and physical suffering and sickness as was the natural and proximate result of the removal of appellee’s underclothing, the total recovery not to exceed the sum claimed in the petition. The petition being broad enough in its terms-to cover these several items of damage, appellant’s criticism of the second instruction rests upon the legal assumption that appellee cannot recover for the items of damages covered by the second instruction. The substance of appellee’s claim under the second instruction was, that she contracted pneumonia because she was compelled to discard her flannel skirt and go without sufficient clothing the remainder of the day; while appellant insists it was appellee’s duty to procure another skirt upon her arrival at Cynthiana, and thus make her loss or damage as light as possible. In support of this contention appellant cites. John C. Lewis Co. v. Scott, 95 Ky., 484, and other cases of that class, ending with C., N. O. & T. P. Ry. Co. v. Gillespie, 130 Ky., 217.
13 Cye., 76, says:
“One who has been injured by the negligence of another must use ordinary diligence to effect a cure,
This duty was imposed upon appellee by the fifth instruction, which required her to exercise ordinary care to protect herself from the consequences of the accident, and relieved the company from liability in case she failed to do so.
Appellant insists, however, that appellee did nothing towards supplying herself with other clothing, and that the evidence being all one way, she was confessedly guilty of contributory negligence. Appellant is mistaken in making so< sweeping a statement. The exercise of ordinary care, did not, under the circumstances, necessarily require affirmative action. The weather was mild — the thermometer ranging between 45 and 65 degrees Fahrenheit. Under such conditions, it cannot be said as a matter of law, that appellee did not exercise ordinary care in failing to procure a new skirt. She might well have thought there was little or no danger from the weather. Moreover, she says she had no money with which to buy another skirt, and the lady she visited was not in a position to lend her one. There was ample evidence to carry this question of contributory negligence to the jury. Neither can appellant maintain its contention that appellee should not have been allowed to recover for her sickness for the reason that it does not appear that the exposure produced the pneumonia which appeared the next day. Ordinarily, pneumonia will not develop within a day; usually, it takes from three to five days for it to do so. But Dr. Wilson, a witness for appellant, testified that he “could not say whether pneumonia might or might not develop the next day after, as the result of an exposure;” and there being evidence tending to sustain appellee’s contention, the determination of the question was properly left to the jury.
3. ' Finally, a question of venue is presented. Under section 73 of the Civil Code of Practice, this action must have been brought in the county “in which the plaintiff or his property is injured; or in which
‘ ‘ The court ■ instructs the jury that if they believe from all the evidence in the case that the accident complained of by plaintiff happened to her in Kenton County, then they should find for the defendant.”
The trial court refused to give this instruction, and did not instruct upon that question. It is insisted for the appellee, however, that since the evidence was all one way, and showed beyond a doubt that the injury was received in Pendleton County, the court ruled properly in declining to instruct on that question. We
Neither was the question of jurisdiction waived by failing to raise it by a separate plea in abatement, or by an affirmative plea in the answer; for the situs being a jurisdictional fact necessary to be alleged, a traverse made the issue.
In 11 Cyc., 699, the rule is thus stated:
“Want of jurisdiction over the subject, matter may be taken advantage of at any stage of the proceedings. An objection to the jurisdiction must be made, however, in - apt time, or it will be waived, where there is not a want of jurisdiction, where there is a mere irregularity in the proceeding, or where the objection is to the form and not the substance. The question of jurisdiction is always open for determination, even though there may be in the same case prior rulings of the same or another judge, sustaining the jurisdiction, and it is to be decided as regards the nature of the thing in controversy, by the character of the suit, without reference to what defenses exist. These questions also rest in the sound judicial discretion of the court itself, to be decided in the first instance by the court whose judicial action is first invoked, except where dependent upon questions of fact, when the jury may, subject to the direction of the court, as to matters of law, affirm jurisdiction or not by a general verdict.”
The question was before this court in L. & N. R. R. Co. v. Reaume, 128 Ky., 90, where the jurisdictional fact in issue was whether the plaintiff, in a tort action, resided in Kenton County — residence in that _ county being necessary for a maintenance of the action. In
“On the trial a question was made as to- the residence of appellee; the appellant insisting that she was a resident of the State of Ohio, and not of Kenton County, Ky., at the time she brought the action in the Kenton Circuit Court. Upon this point, which will probably not arise on another trial, the jury, under proper instructions, found that appellee was a resident of Kenton County, and there was evidence sufficient to warrant their finding in this particular.”
We have the same question of practice here, and under the pleadings and the evidence, the question as to the county in which appellee’s injury was received should have been submitted to the jury. For the failure of the trial judge to so instruct, the judgment is reversed for further proceedings.