129 S.W.2d 986 | Ky. Ct. App. | 1939
Reversing.
The case presents the questions of the validity or extent of validity and application to the facts of conditions in an interstate railroad pass by which the user agreed to assume risks of accident. The appeal is from a judgment in favor of the appellee, Mrs. Lydia George, for $5,698.35 for personal injuries sustained July 6, 1936, at the Union Station in Louisville.
The plaintiff was 76 years old at the time but vigorous and active. She traveled alone most of the time, and testified that she never needed any assistance. There is no evidence tending to show that she needed the special attention or assistance required to be given infirm passengers by a carrier's employees. Mrs. George was returning to her home in Freeport, Texas. She was accompanied to the train by the husband of her granddaughter, Gordon Thurston, who carried her baggage. Several passengers had boarded the train when Mrs. George got on. She and Thurston testified that the train porter barred him from following or going with her up the car steps. When she got to the platform, according to Thurston:
"She stood up on the platform several seconds, and she turned and looked south to see if there was an *26 empty seat in the coach ahead, and immediately there was that sudden — very sudden, sharp jar, that knocked her off her feet, and she fell there in the vestibule of the train."
The witness stated that when Mrs. George fell her feet were out the car door in the vestibule. This would, of course, indicate that she was at the threshold when she was thrown to the floor or lost her balance. She suffered a fracture of her hip, and there is no claim that she was not seriously hurt. The moving and stopping of the train was under the following circumstances: It had come from Cincinnati and had been stopped a few feet from two pullman cars which were to be coupled on. When Mrs. George was in the on above described, the train was backed very slowly, about eight feet, according to Thurston, and four or five feet, according to the railroad employees. The brakes were set on the pullmans and they were practically immovable. The plaintiff testified that there was a "terrific crash" and Thurston that there was "a very sharp and sudden" and violent jerk or stopping caused by the train striking the pullmans or the putting on of the brakes of the moving train.
It is enough to say the trainmen related that there was a "good coupling" made by an experienced crew, in the usual and customary manner; that the train moved very slowly and there was little or no jar. In short, they proved that the jerk or stoppage could not in any sense be called unusual or unnecessary. The porter testified that Thurston had gone up the car steps and assisted Mrs. George inside the coach where she had fallen. He had called to her as she went in the door to watch her step as they were going to make a coupling.
The appellee was traveling on a gratuitous pass between Louisville and New Orleans, issued to her by reason of being the mother of a conductor employed by the Missouri-Pacific lines. The pass contained this condition: "The person accepting and using it thereby assumes all risk of accident to person or property" Mrs. George had signed: "I accept the above conditions."
Section 196 of the Constitution of Kentucky declares: "No common carrier shall be permitted to contract for relief from its common law liability." Under this we have held a carrier may not by a stipulation in an intrastate pass relieve itself of liability for injuries *27
sustained on account of its gross negligence — the question of ordinary negligence not being involved. Louisville Nashville Railroad Company v. Brown,
But the Supreme Court, in Kansas City Southern Railroad Company v. Van Zant, 260 N. S. 459,
"We think, therefore, free passes in their entirety are taken charge of, not only their permission and use, but the limitations and conditions upon their use; or to put it another way, and to specialize, the relation of their users to the railroad which issued them, the fact and measure of responsibility the railroad incurs by their issue, and the extent of the right the person to whom issued acquires, are taken charge of."
We, therefore, look to the decisions of the Supreme Court of the United States to determine the validity of the contract of exemption from liability of the appellant for the accident sustained by the appellee.
We are not certain, under the present status of that court's opinions, whether such contractual release from liability to an interstate passenger is to be deemed valid under every condition or only where there was no wilful or wanton negligence. The court has held that a passenger who accepts a free pass may exempt the carrier from responsibility for negligence, and no public policy is violated thereby, in Northern Pacific Railway Company v. Adams,
The most recent case to which our attention has been called is New York Central Railroad Company v. Mohney,
"The authorities are uniform in holding that to constitute willful or wanton negligence it is not necessary to show ill will toward the person injured, but an entire absence of care for the life, person, or property of others which exhibits indifference to consequences makes a case of constructive or legal willfulness. A complete indifference to consequences distinguishes wrongs caused by wantonness and recklessness from torts arising from negligence."
The term "wilful or wanton negligence" in cases of this character is substantially the equivalent of "gross negligence" of the character and degree which under our practice authorizes a punitive damage instruction. As stated in 10 Am. Jur., Carriers, Section 1147:
*30"There is no fixed pattern of liability in this connection. No adequate definition has yet been formulated by the courts of the term 'gross negligence,' beyond such broad generalities as that 'gross negligence is the want of slight diligence,' and similar unworkable rules. Indeed, the Supreme Court of the United States has reaffirmed the lack of a guide by which to judge the factum of gross negligence in a particular situation, and has relegated this task to the jury."
The annotation in 7 A.L.R. 852, presents the decisions up to its date of preparation, holding what was or was not gross negligence in cases involving the liability of carriers for injury to free passengers. Subsequent cases are Lanier v. Bugg,
Judgment reversed.
Whole Court sitting.