181 Ky. 800 | Ky. Ct. App. | 1918
Affirming.
The appellee and plaintiff below, Mrs. Lusinda Blevins, on the 26th day of March, 1916, boarded a train of appellant and defendant below, Millers Creek Railroad Company, for the purpose- of being transported from VanLear Junction to VanLear, both in Johnson county, Kentucky. She was about 45 years of age, and weighed 225 pounds, and at the time of her alleged injuries she had not taken her seat in the car, but-was looking for one, and had a grip in one hand and with the other was leading a small child. Claiming that while thus situated defendant, by the careless handling of its train, produced a -sudden, unnecessary and unusual jerk, causing her to fall against her son-in-law, immediately in front,' and injuring her, she filed this suit to recover $3,000.00 damages as compensation for her alleged injuries.
The answer was a traverse and a plea of contributory negligence, the latter of which was denied, and upon trial the jury returned a verdict in favor of plaintiff for the sum of $500.00, upon which the court rendered judgment, to reverse which the defendant prosecutes this appeal.
- Practically all of the grounds contained in section 340 of the Civil Code as reasons for a new trial are relied upon in the motion for that purpose which defendant filed, but the chief ones urged here are: Error in instruction No. 3 given to the jury; that the court should have sustained defendant’s motion for a peremptory instruction, and that the verdict was flagrantly against the evidence in that the testimony failed to show that the alleged lurch or jerk of the train was unusual, violent or unnecessary.
The uncontradicted testimony shows that one of plaintiff’s hips was bruised and strained, and that her back was wrenched, which produced considerable pain, and forced her to remain in bed for ten days or two weeks, and that her ability to work and earn money has been greatly impaired. According to her testimony, and that of some of her witnesses, she was not entirely recovered at the time of the trial. However, we find no complaint made because of the size of the verdict.
The train was a mixed one, carrying both freight and passengers, and there were some fourteen or fif
“Passengers on freight or mixed trains assume the additional risk of such additional jerking and jarring as is incident to the operation of such trains, as distinguished from passenger trains, and such jerks or jars will not constitute negligence; but this does not relieve the carrier from using the highest degree of care to prevent unusual or unnecessary jolts or jars by such trains.”
This text is supported by adjudications from many states, including those from Kentucky, supra, and indeed the rule does not seem to be denied by counsel for defendant. The trial court recognized this distinction between the rights of a passenger upon a mixed train and their rights upon a regular passenger train, as well as the measure of care due from the carrier in the operation of such trains, by instruction No. 5, which it gave to the jury at the instance of appellant. This instruction in substance told the jury that riding on mixed trains composed of both freight and passenger cars is unavoidably accompanied by more danger, &e., than riding upon exclusively passenger trains, and that
“If the jury believe from the evidence that the agents of defendant in charge of the train upon which plaintiff was a passenger so negligently operated said train as that plaintiff was by a sudden or violent jerk, not necessary or usual in the operation of said train, caused to fall and thereby injure her, they will find for the plaintiff, ” &c.
The criticism of this instruction is that it does not point out the distinction between the operation of a mixed train and that of a regular passenger train, but it will be observed that the quality of jerk therein described which would fasten negligence upon the defendant and permit the plaintiff to recover for any injury produced thereby is .one “not necessary or usual in the operation of said train,” and “said train” is the character of one described in instruction No. 5 above referred to, and which is the character of train upon which plaintiff was admittedly a passenger. When instruction No. 3 is considered, in the light of instruction No. 5 (it being admitted that the train was a mixed train) the words “said train,” in instruction No. 3 can not be construed to mean, nor could the jury have understood it to mean anything more than if instruction No. 3 had used the words “said mixed train.” We therefore find no merit in the criticism of instruction No. 3.
It is insisted that the evidence did not show the jerk complained of to have been violent, unusual and unnecessary. It is not necessary, in order to establish this fact, for the witnesses in describing it to expressly use the words, “violent, unusual and unnecessary.” If the violence of the jerk is of such character as to authorize the jury to infer that it was unusual and unnecessary, and that it could have been produced only by careless operation, it will be sufficient. However, in this case some of the witnesses did say that the jerk was unusual
Wherefore, the judgment is affirmed.