187 Ky. 192 | Ky. Ct. App. | 1920
Opinion op the Court by
Affirming.
Through her father as next friend, Marie Eoberts, an infant, brought suit against the Louisville & Nashville Eailroad Company to recover damages for personal injuries. From a verdict and judgment in her favor for $1,000.00, the railroad company appeals.
It appears from the petition that the defendant owns and operates a railroad between Jackson.and MeEoberts, and that on March 6, 1916, plaintiff purchased a ticket from Jackson to Haddix, and entered the rear coach, of defendant’s passenger train and took a seat near the front door. The petition further alleges that after said train left Jackson, the first stop was made at Dumont, a flag station near the Dumont tunnel; that the defendant, by its agents and employees who had charge of the train, carelessly and negligently left the front door of the rear passenger car open as the train entered Dumont tunnel; that the rear passenger car, in which plaintiff was seated, was filled with fumes, smoke and cinders that came from the engine of said train and entered the open door of the car, stifling and suffocating the plaintiff, and that a hot cinder entered her right eye, causing her great pain and impairing her vision.
Plaintiff’s testimony is in substance as follows: She got on the train at Jackson. She and her mother took a great near the door. After the conductor took up the tickets, the train stopped at Dumont. As they went into the tunnel, the brakeman came in and left the door open. The car was filled with cinders and a cinder'went into her eye. In about a week she went to Jackson and Dr. Back
It is insisted not only that the demurrer should have been sustained to the petition, but that defendant was entitled to a directed verdict. To support this position the case of M. K. & T. R. Co. v. Orton, 67 Kan. 848, 73 Pac. 63, is relied on. In that case plaintiff passed through a train looking for a seat and finding none, he stopped in the door of the car, and while standing there a cinder struck him in the eye. Though there was a verdict in favor of plaintiff, the jury found that the engine of the train was in good repair, and was supplied with the best known appliances to prevent the escape of cinders; that the engineer in charge was both competent and skillful, and so was the fireman, and that the engine was being properly and skillfully managed and operated at the time the injury occurred. After adverting to the fact that the findings of the. jury acquitted the company of all negligence as to the construction of the locomotive and its management and operation, the court said:
“The only other charge of negligence was in failing to keep closed the door of the coach wherein the plaintiff was riding. The rules of the company, it is true, required that the doors be kept closed; but the opening and closing of the doors and windows of cars is not fully within the control of the company or its employees. Passengers pass from one coach to another, and hence the .doors are frequently opened. They are also frequently opened by passengers for purposes of ventilation. The mere fact that a cinder comes in at a door or window and strikes a passenger is not evidence of negligence. Cinders come into cars and into contact with
Over the objection of defendant, plaintiff was permitted to state that the specialist, whom she visited in Lexington, on being told that plaintiff had gotten a cinder in her eye, stated that more than likely that was the cause of her trouble. It may be conceded that this evidence was mere hearsay, and was not admissible. L. & N. R. Co. v. Lynch, 137 Ky. 696, 126 S. W. 362, but
We do not regard the verdict as excessive.
Judgment affirmed.