181 Ky. 689 | Ky. Ct. App. | 1918
Opinion of the Court by
Reversing.
Thomas C. Phelps, while riding in what is known as the smoking car for white passengers, a car that was divided into compartments by partition in the middle, the front end being set apart for colored passengers, fell against the glass window in the car as he was about to take his seat near the window. In the fall his head went through the glass and broke it and jagged parts of the glass cut Phelps so badly about the face and throat that he died soon afterwards from loss of blood.
Afterwards this suit was brought by his administrator to recover damages upon the ground that the death of his intestate was caused by the negligence of the railroad company. More than one act of negligence was attempted to be made out in the evidence and is discussed in the brief of counsel for the administrator, but as the case went to the jury upon only one ground, which submitted the only act of negligence, if there was any that was at all made out in the evidence, we will confine this opinion to the facts and circumstances connected with it.
So treating the case, the negligence complained of consisted in the fact that the conductor of the train compelled Thomas C. Phelps, who was drunk and disorderly in the coach set apart for ladies as well as men, to remove from that coach to the one immediately in front of it known as the smoking car for white men; that when Thomas C. Phelps, with the assistance of the conductor, was taken from the ladies’ coach to the smoking car, while the train was running at its regular speed, he was in such a state of intoxication as to be helpless and unable to take care of himself; that when he had been taken to a seat in the front end of the smoking car next to the partition that separated it from the compartment for colored persons, and while he was standing in the aisle, or at the end of the seat, but before he
Turning now to the evidence, the first witness for the administrator was Boone Phelps, the brother of Thomas Phelps, who, after testifying that he and his brother, who was about fifty years old, got on the train at Nicholasville to go to Irvine, testified as follows: “Q. When you got to Nicholasville what was the condition of your brother with .reference to drinking, or being drunk? A. He was' pretty full; he was that way when we left home. Q. When you got to Nicholasville did all of you, or any of you, buy any tickets to Irvine? A. I bought tickets for all three of us. Q. What coach did you get in? A. We got in the second coach, in the front end. Q. The front end of the second coach? A. Yes, sir. Q. Do you recollect, with any certainty, as to which seat in the rear coach you got in? A. The first seat after you go in the door, on the left hand side. Q. On the left hand side entering? A. Yes, sir. Q. Now, Mr. Phelps, I will get you to tell the jury what took place between your crowd and the conductor with reference to requiring your brother to move into the front car; the smoking car. A. Well, he passed by several times and brother was talking rather loud, the door was open,.and the rattle of the train and all, and the conductor passed u£ two or three times, and finally he come to us. There was a couple sitting right behind us that stopped him once as he went through, and then he come to my brother and told him, says, ‘You will have to go to the other coach; you are talking too loud in here,’ and caught hold of him and started to the other coach, and I got up and caught hold of him. Q. Which arm did the conductor take hold of him? A. The left arm, and I got hold of the other arm and started through between the coaches, and when we got out on the platform we hit a curve and come pretty near throwing us off, and the conductor took hold of me; grabbed me by the shoulder. Q. What was your condition then with reference to being intoxicated, or not? A. I only had a drink or two in me. Q. Your brother was full, how
George Teegarden, a witness for the administrator, said: “Q. Which car were you in, Mr. Teegarden? A. I was in the smoking car. Q. What part of the smoking car were you sitting in? A. About half way down on the left hand side. Q. Did you see Mr. Phelps and the conductor when they came into that car? A. Yes, sir. Q. I wish you would go on and explain to the jury just what you saw and heard? A. I didn’t pay much attention; they come in and kinder stopped right at the door, and then I looked around again and seen him and his brother coming down the aisle. There was not room for the three to walk side by side, and the conductor had his arm here (witness indicating). Q. What did he
This was all the evidence introduced on behalf of the plaintiff.
For the railroad company, E. H. Ills, the conductor, said: “I collected the ticket from Mr. Boone Phelps, and the other gentleman never was able to find any ticket, and he paid me cash fare. Q. How much? A. He gave me two one dollar bills, and I think the fare was $1.51 or $1.52. Q. Did you give him the change? A. I gave him the change. Q. Mr. Ills, tell the jury what the conduct of Mr. T. C. Phelps was on the train and in the ladies’ car. A. Very bad. Q. Well, without conclusions, tell what he did. A. Well, sir, I approached Mr. Phelps and asked him for his ticket, and his brother handed me a ticket, and he says ‘I have a ticket somewhere.’ Well, I asked him to give me his ticket, and asked bim where he went, and he says, ‘by God,’ said ‘I know where I am going.’ I told him ‘that was all right, to give me his ticket so I could tell where he was going.’ He felt in his pocket there, for I reckon, ten
For the railroad company W. M. Lowry, another witness, said: “What part of the train were you riding in? A. In the smoking car. Q. What first attracted your attention to the fact Mr. Phelps was in the car? A. The first I knowed of it some man, who I didn’t know to be Mr. Phelps, but learned afterwards, put his hand on my left shoulder. Q. Where was the gentleman at that time? A. He was walking up the aisle. Q. How; by himself, or some one with him? A. There was another man behind him. Q. Did you ascertain, or find out who that man was? A. They said it was his brother. Q. Where was the conductor at that time, if you know? A. I don’t know. Q. What become of this gentleman that put his hand on your shoulder; did he go forward, or stop, or turn and go back? A. He went forward. Q. His brother still with him? A. Yes, sir. Q. Have hold of him? A. I don’t know that he really had hold of him until he got almost up to where they set down. Q. Tell the jury, Mr. Lowry, what you saw occur there from the time this man put his hand on your shoulder until the accident happened? A. Well, I just simply looked around at him and saw the man going, and of course, they were only about three seats, I suppose, from where I was to where they went. I noticed this man; he was not holding him very strong; he might have had his hand just a little bit on his right arm, and taken him on to the front of the car, and started to sit down on the left hand side, and then I heard a crash through the window and looked up and the man’s head, or rather his neck, was up against the win-, dow glass. Q. When did you see the conductor? A. Behind him. Q. Did he have hold of this man? A. No, sir; he stopped in the aisle right opposite where they were sitting, down at the end of the car, at the double seat.”
C. A. Moores, another witness for the railroad company, said: “Q. Did you see Mr. Phelps when he same into the car; into the smoking car? A. Well, I saw
Claud Neal, a witness for the railroad company, said: “Q. What part of the train were you on? A. In the smoker. Q. Where was he the first time you noticed him? A. He was on the first seat, to the left, the way the train was running. Q. In the smoking compartment? A. Yes, sir. Q. Was he seated in there? A. Yes, sir.
E. W. Isaacs, J. W. Tucker, Lee Thompson, Hampton Pendleton and Keel Eoberts, other passengers in the smoking car, testified substantially to the same facts as Moores and Neal.
This evidence shows very clearly that Thomas <j. Phelps was disorderly, insulting and offensive to the ladies and other passengers in the ladies’ car, and therefore the conductor was entirely within his rights in removing him from the car to the smoking car, occupied only by a few men, although there is some contention on the part of counsel for the administrator that the duty of the conductor was, under the circumstances, to stop the train and eject Phelps if he was drunk and disorderly.
We think, however, the conductor, under the facts, might .have stopped the train and ejected Phelps without subjecting the company to any liability for his conduct in so doing, assuming, of course, that there was no eir
But we are also of the opinion that when a passeng-er in a car occupied by ladies and children is drunk or disorderly or insulting or offensive to the passengers or any of them in the car in which he is riding the conductor, in place of stopping the train and ejecting the passenger, may, in the exercise of ordinary care for the safety of the offending passenger, require him to remove to another coach where his conduct may not be offensive or objectionable to the passengers riding therein.
Having this view of the matter we will now consider the question whether the conductor was guilty of negligence in anything he did in connection with the removal of Phelps from one car to the other and particularly in what he did at the time Phelps was taken to the seat at which he fell through the car window.
In determining this question it is important to ascertain what state of intoxication Phelps was in, or, in other words, whether he was so intoxicated as to be helpless or incapable of taking care of himself, or only so much under the influence of liquor as to be disorderly, offensive and insulting.
There is, of course, no room for doubt that Phelps was under the influence of liquor, but from a careful consideration of the whole evidence, owr opinion is that he was not so helpless or incapable of taking care of
'The law applicable to a ease like this was declared by this court in L. H. & St. L. Ry. Co. v. Gregory’s Admr., 141 Ky. 747, where the court said: “It is the duty of the train employees to look after the safety and comfort of all the passengers, and they are not required to extend to one more protection or care than another, except under special circumstances. And the mere fact that a passenger is drinking or under the influence of liquor is not enough to put upon trainmen the extra duty of giving to him more care than to other passengers. This measure of duty is only demanded when the condition of the passenger is such that he is helpless or incapable of taking care of himself. If a passenger, on account of intoxication that does not produce helplessness or incapacity, is rendered less capable of protecting himself from accident or injury than he otherwise would be or his condition induced him to become more indifferent to his safety, he must take the consequences of his own recklessness, and the company will not be charged with the duty of taking especial care of him. His right to recover is no greater than would be that of a sober person of ordinary prudence.”
To the same effect is L. & N. R. R. Co. v. Mudd’s Admrx., 173 Ky. 330. Other pertinent cases are L. & N. R. R. Co. v. Logan, 88 Ky. 232; L. & N. R. R. Co. v. Deason, 29 Ky. Law Rep., 1259; Thixton’s Exr. v. I. C. R. R. Co., 29 Ky. Law Rep. 910; L. & N. R. R. Co. v. Johnson, 168 Ky. 351.
Applying now to the facts of this case the principles of law set down in the Gregory case and adopted in the Mudd case we are of the opinion that Phelps was not so helpless or incapable of taking care of himself as to make it incumbent upon the conductor to see that he was carefully seated in the smoking car. The great weight of the evidence, almost entirely by disinterested wit
If Phelps had been wholly incapable of taking care of himself or in such a helpless condition as that he could not have taken the seat without assistance it might well be said that the conductor would have been under a duty not to have left him or loosened his hold of him until he had been seated, but as he was not in this condition the conductor did not owe him that high degree of care that would have been required in looking after a passenger who was helpless or incapable of taking care of himself.
In the condition that Phelps was the conductor was not required to do more than the evidence shows he did, which was to take him to the seat and to a-position where he could have taken the seat with safety to himself.
Under the circumstances the conductor was not under a duty to anticipate that what happened to Phelps would happen nor was he lacking in ordinary care in doing what he did do or in failing to do anything. If the conductor, in the exercise of ordinary care, could have anticipated or foreseen that what happened would happen he would, of course, have been under a duty to have exercised ordinary care to have prevented its happening, although Phelps may not have been in such a helpless condition as to impose on the conductor the duty of looking after his safety. But it is a general rule of negligence law that where a person is not under a duty to do a prescribed thing he is not liable in negli
Thus it was said in Gosney v. L. & N. R. R. Co., 169 Ky. 323, supported by abundant authority that: ££A defendant usually is not liable for negligence where no injurious consequences could reasonably have been contemplated as the result of the act or omission complained of; he is liable only where injuries might have been anticipated, or foreseen. A person is expected to anticipate and guard against all reasonable consequences; but he is not expected to anticipate or guard against those which no reasonable man would expect to' occur. ’ ’
Now- assuming as we do that Phelps was drinking, disorderly and offensive, but yet not helpless or incapable of taking care of himself, we think it plain that the conductor in the exercise of a reasonable judgment could not have anticipated that Phelps would be injured in the way that he was.
We are, therefore, of the opinion that the court erred in failing to give the peremptory instruction requested, and the judgment is reversed, with directions, if there is a retrial and the evidence is substantially the same as appears in this record, to take the case from the jury.
Whole court sitting.