81 Ky. 624 | Ky. Ct. App. | 1884
DELIVERED THE OPINION OS' THE COURT.
This is an action by appellee to recover damages for personal injuries sustained on account of being unlawfully, wrongfully, and by the gross negligence of the conductor of appellant’s train of cars, ejected therefrom and exposed to freezing weather while in a helpless condition.
From the evidence it appears that appellant, on the day he was ejected from the train, which was the 25th of December, walked from Cropper’s station, on the line of appellant’s road, where he was staying temporarily, to Christiansburg, another station, where he obtained whisky, and,.
There is some conflict in the testimony as to the precise place the train left him, and also whether he was at the time standing or lying, one of the witnesses, a brakeman, •testifying that he was standing, and said to him, "You can kill me, if you like.” But about one hour and a half after-wards, near the time for the train going toward Christians-burg to pass, and about two hundred and fifty yards toward Cropper’s from the place where the conductor testifies he was put off the train, he was discovered by one of the witnesses lying across the track, helpless and nearly unconscious, with a quart bottle nearly full of whisky, who pulled him off the track, but being unable to remove him from the place, left him.
By reason of his exposure for such length of time to the ■cold weather, the temperature of which was, as stated by several witnesses, between eight and ten degrees below zero, his feet, hands, shoulder, and parts of his legs and of one
Judgment having been rendered in accordance with the verdict of the jury for five thousand .dollars, the railroad •company has appealed, and assign various errors.
One of the grounds for a new trial was that the damages assessed by the jury are excessive, and appear to have been given under the influence of prejudice.
As this ground is not assigned as an error, it can not be considered on this appeal. Nor can we consider the fourth assignment, which is that the court erred in overruling the motion for a new trial; for, as has been heretofore' held, it is too general to raise any question for decision.
The first error assigned is that the court improperly excluded evidence, as set forth in the grounds for a new trial.
The first of the grounds thus in general terms referred to in the assignment is, that appellant was not permitted to prove by the conductor that he would not have put appellee ■ ■off the train if he had known he could not walk, or was. mentally or physically in a helpless condition.
Even if the evidence had been relative and competent, it can not be now considered by the court, because counsel having failed to avow that the witness would so testify, it never was, in fact, passed on by the lower court.
For the same reason this court can not consider the other •ground for a new trial, viz.: that the court refused to allow .appellant to prove by appellee that he was a dissipated man, and that he was in the habit of or frequently laid out all night.
The second assignment is that the court erred in refusing to render a judgment for defendant upon the special verdict of the jury.
Instruction No. x, given at the instance of appellee, is as; follows: “Although the, jury may believe from the evidence that plaintiff got on defendant’s cars to go from Christians-burg to Cropper’s station, and that he had no ticket — and when his fare was demanded he said he had no money, and neither paid his fare nor delivered to the conductor a ticket— yet if they further believe from the evidence that he was. then in such a state of intoxication as to render him mentally or physically incapable of taking care of himself, and. he was then in such a helpless condition that to put him off' said train would necessarily expose him to death, or great danger of being frozen, and that defendant’s agents in charge-of said train at the time knew plaintiff’s helpless condition and the danger he would be exposed to, being then and there ejected from said train, then they should find for plaintiff such compensatory damages as he may have sustained thereby, as were the necessary and proximate results-of his having been put off the train, not exceeding $25,000.”
Two instructions were asked by appellant, but as one of them was given so modified as to harmonize with the one given at the instance of appellee, and the one refused is the-reverse of it, we need not quote them.
The following facts were found by special verdicts of the jury:
1. That though requested, appellant-, while on the train, refused to either pay his fare or deliver to the conductor his-ticket.
2. .He was at the time intoxicated, and in such a helpless-
3. The conductor in ejecting him from the train used no .more force than was necessary for that purpose.
From the facts found by the jury and the evidence in the -case, it is clear that even slight diligence and care on the part of the conductor would have enabled him to prevent ■.the injury done to appellant.
It is clear, also, that the act of the conductor was within 'the scope and in the course of his general authority, and Fence appellant must be held responsible for whatever liability attaches thereto.
It being thus established that at the time appellee was put ■off the train he was himself a trespasser, and that the calamity which befell him was brought on, in part at least, by his •own conduct in getting drunk, the question that arises is, whether the act of the conductor is to be held in law, as it is in fact, gross negligence for which appellant may be made .liable.
The right generally of railroad companies to put off their trains persons who refuse to pay their fare, when requested by the conductor, may be conceded; but does it follow that this right may be exercised in such a manner, under such circumstances, or against a person in such mental or physical condition as that death or serious bodily harm will necessarily, or even probably, result from putting him off ?
It is true that appellee, by refusing to pay his fare, became technically a trespasser; but it is well settled that a party may, in some cases, recover for the gross negligence of another, notwithstanding he may have been a trespasser upon the rights of the other at the time he received the .injury.
In the able opinion delivered in a leading case (Isbel v. The New York & N. H. R. R. Co.), just cited, the court said: “A remote fault in one party does not, of course, dispense with care in the other. It may even make it more-necessary and important, if thereby a calamitous injury can-, be avoided, or an unavoidable calamity essentially mitigated. Common justice and common humanity, to say nothing of law, demands this; and it Is no answer for the neglect of it to say that the complainant was first in the wrong, since inattention and accidents are, to a greater or less extent, incident to human affairs. Preventive remedies must, therefore, always be proportioned to the case, in its peculiar circumstances, to the imminency of the danger, the evil to be avoided and the means at hand to avoid it. And herein is'
In the case of Johnson v. The C., R. J. & P. R. R. Co. (58 Iowa), the plaintiff was removed from the waiting-room of a railroad station by the agent of the defendant. His shoulder was dislocated either from a fall from the door, out of which the agent pushed him, cr by a fall after he landed on the platform. The plaintiff was not in the waiting-room awaiting an outgoing train, to take passage, or for any other purpose for which a waiting-room at a station is kept open to the-public. He had no right to remain there after being requested by the agent to leave it. He refused the request to leave before any violence was used' toward him, and was •drunk and disorderly. In the opinion delivered in that case the court said: ‘ ‘ The rule that carriers of passengers are liable for the neglect, or wrongful acts of their servants or •employes, does not always depend upon the fact that the •carrier owes a duty, or is under some obligations to the party injured. When á person is found upon a train, who refuses to pay his fare, the company owes him no duty, and he may be .removed; but if in removing him he is wrongfully injured by personal violence, or by being thrown from the train when in motion, or the like, he may recover from the company for his injuries. This is no more than the application of the ancient rule that if one person come into the •dwelling-house of another, without right, after requesting him to depart, and his refusal to comply with the request, he may be removed by gently laying hands upon him and using such force as is reasonably necessary to affect the object; but if excessive force be used, the action is a wrongful assault.”
In the case of Wiymire v. Wolf (52 Iowa, 533) the plaintiff’s intestate, Dunn, was an habitual frequenter of the saloon kept by the defendant, who sold him intoxicating liquor, which caused him to be drunk, and while he was in . a state of helpless intoxication the defendant expelled him from his saloon at a late hour of the night, and Dunn being then intoxicated, died of cold and exposure. The court Reid: "If it should be conceded that Dunn contributed to Ihis death by drinking until he became drunk and uncon
That case is so nearly like this that the reasoning which/ may be applied to one is applicable to the other, and if correct, as we believe it is, it must be regarded decisive of the question involved Ijere.
If in defense of either person or property a party uses more force than is necessary, the defense degenerates into aggression, and the party becomes a wrong-doer and liable for the unnecessary injury inflicted, whether done intentionally or negligently. The language of the law is motitermanus imposidt.
We do not understand this' injunction as applying merely to the character of weapons that may be used in defense of the person, or the degree of propelling force applied in removing a trespasser from a party’s premises; but it is intended to apply and govern as to the manner, and circumstances in which and condition of tlie parties, when the right: to protect one’s person and property may be exercised. Thus:
In this case, if the evidence and the special findings of the jury are to be believed, appellant’s agent and employe, if he did not use more actual force than was necessary to expel' appellee from the train, did use it under circumstances and at a time when the consequences ordinarily would be as injurious as when, in attempt to remove a trespasser from his. dwelling-house, the owner should shove him from an upper-story, or lead him into a pitfall or well, or when a person is-, pushed off a fast-moving train. In every such case the party would be justly chargeable with negligence, and held liable therefor, the fault or negligence of the person injured being remote, and therefore affording no defense to an action brought for the injury resulting.
Applying these principles, which are in accordance with the authorities, and sustained by the necessities of society and the analogies of the law, the instruction of the court, which we have quoted, was right, and it was not error to-overrule the motion to render judgment for the appellant upon the findings of the j ury.
The judgment is affirmed.
AI-generated responses must be verified and are not legal advice.