201 Ky. 33 | Ky. Ct. App. | 1923
Opinion of the Court by
Reversing.
On January 6, 1920, the appellee and plaintiff below, Nancy E. Simmons, resided at West Moreland in the state of Tennessee. Her married daughter, Mrs. F. W. Mooningham, who lived at Somerset, Kentucky, had been visiting her, and -on that day the two purchased tickets from the Louisville & Nashville Railroad Company from Gallatin, Tenn., to Somerset, Ky., which routed them over the lines of that company from the beginning point of the trip to Louisville, Ky., and from thence to Junction City, where its line crosses that of the Cincinnati, New Orleans & Texas Pacific Railway Co., (hereinafter referred to as the Texas Pacific), and from thence over its lines- to Somerset, the point of destination. Plaintiff and her daughter arrived in Louisville on time and left there for the latter part of their journey over the Knoxville branch of the Louisville & Nashville Railroad Company at about 8 o’clock p. m. on the same day. When their train had gotten out of Louisville some 15 or 20 miles, the conductor was informed that a wreck had occurred ahead of it, between Junction City and Louisville, and that it would require some considerable time to clear the track for the passage- of trains. Pie was directed to bring his train back to Louisville and to make the trip from the latter place to Junction City by -a detour over the tracks of the Southern Railway Company in Kentucky, (hereinafter referred to as the Southern Company), running from Louisville to Danville, and thence over the- tracks of the Texas Pacific Company from the latter point to Junction City, a distance of about four miles, which detoured trip could be made in a much shorter time than to wait for the clearing of the wreck on the tracks of the L. & N. R. R.
She first brought this action against the Director Cieneral of Railroads and the Texas Pacific Company to recover damages for her injuries upon the ground that the defendant company failed to comply with it® legal duty
Ground (1), sub-division (a), presents a question which, as developed by the facts of this case, has never been passed on by this or any other court so- far as we are able to find; nor does counsel on either side cite us to any text authority or opinion of last resort bearing directly upon it. It will be observed that the precise question is, whether a carrier of passengers is under the ordinary 'and well understood duties- óf such carriers to maintain for the benefit of their patrons depot facilities, including the requisite lighting, at the various- stations on the line of a road not ordinarily used by it, but upon which it is only operating its train for a sporatie and single detouring trip, -and when at none of ,such stations are any of its passengers destined, nor at none of them has it the right to take on passengers. The briefs-for both sides take in a wide range and discuss many questions relating to the possible happenings to a passenger train while operated by the owner of the line, and
In stating the rule- requiring carriers of passengers, whether the performance is by the owner or 'by a lessee, to maintain reasonable depot facilities, including lighting for the required time, it will be found that the duty is extended to stations appropriated and used by the carrier and for the benefit of its passengers expecting to board a particular train or who have the right to depart from one. Thus in Hutchinson -on Carriers, third edition, vol. 2, section 936, the text on the subject 'says: “It is the duty of passenger carriers by railroad to exercise ordinary care in keeping their stations and platforms and the approaches thereto sufficiently lighted so that passengers, and those intending to become ®uch, may enter upon and depart from trains with reasonable safety. Such lights should be maintained for a reasonable time before and after the arrival and departure of trains. There is, however, no absolute rule of law as to what constitutes negligence in regard to the duty of a carrier
It will be observed that the facts of the instant case are by no means 'analogous to those calling for the application of the doctrine, and are not within the reasons underlying it and demanding its application. If the Louisville & Nashville Company, under tihe facts of this case, could in any sense be considered as a lessee of any part of the equipment belonging to the common carriers of the detoured route, it was necessarily confined to the track, or perhaps also to the train. It had no passengers for any of the stations along- that route. Neither was it expected to nor could it take on passengers from any station. along that route. It only appropriated for the one trip certain parts of the equipage of the two other common carriers in order to carry out its duties to transport its passengers with as little delay as possible. Of course, if any negligent accident had happened to the train or the track which it appropriated and operated for the special trip, or if the latter was defective, it would be liable for the consequent injury, but it does not by any means follow that a passenger not destined for'any of the intervening stations could impose the additional liability for the improper maintenance of depot facilities by voluntarily leaving the specially detoured train at a point to which he was not destined and to which the carrier had not agreed to transport him. If that duty could be imposed by-plaintiff with respect to the depot at Danville, it could likewise be imposed by her with respect to any
The defendant company in this case was. not a seeker of patrons while running over the detoured track and it is doubtful if it could be compelled to accept a passenger from any of the stations along that route. It was equally not a discharger of passengers along the same route who were not destined for any of the stations on it, there being none such in this case. If one of them, for personal convenience of his own, saw proper to leave the train, at any of such stations, it would be at his risk after he alighted therefrom. Indeed the conductor of defendant’s train testified in this case that he so stated to plaintiff at the time 'she manifested her intention to leave the train at Danville, and that testimony is not denied by any witness. But, be that as it may, we are convinced that the rule invoked by plaintiff and upon which she bases her cause of action does not apply to a passenger who voluntarily leaves the train on a detoured route and, especially so, in the absence of express directions by the conductor for him to do so.
We find nothing in the case of Wilsey v. L. & N. R. R. Co., 83 Ky. 511, relied on by counsel for plaintiff militat
The duty to maintain lights at stations is not a statutory one with us, but other analogous ones are imposed
Under subdivision (b), of ground (1), defendants contend that in no event were they required to keep the depot at Danville lighted more than a reasonable time after the departure of its train, as was held by this court in the case of Ward v. L. & N. R. R. Co., 168 Ky. 826. In this case plaintiff was not injured until the elapse of as much or more than thirty minutes after the train departed, and it would seem that there was merit in this contention. But, in view' of our foregoing conclusion on sub-division (a), of the same ground, we deem it unnecessary to elaborate the question.
It i® contended under ground (2), that the court erroneously instructed the jury that it was the duty of ■defendants “to observe the highest degree of care which prudent persons engaged in the same business are accustomed to observe, to have and maintain its station, and platform, and grounds in a reasonably safe condition for the use of passengers in coming to or leaving their station, and to have and to maintain their station, platform, and grounds, reasonably well lighted.” The great weight of authority and, indeed, every ease, except perhaps a few sporadic ones, require of carriers only the exercise of reasonable or ordinary care to provide and ¡maintain such imposed duties. Michie on Carriers, vqí
Another objection to the instructions, under this ground is that the one on contributory negligence required plaintiff to exercise that degree of care for her own safety as is “usually exercised by persons of her age, experience, intelligence and discretion and condition.” There was no question in the case of infancy or other mental defect. The plaintiff was only 63 years of age at the time of the accident and was in possession of her normal mental facilities so far as the record shows. We'can, therefore, find no basis for the qualification of the instruction, the effect of which was to possibly mislead the jury. If upon another- trial the testimony should be substantially the same as that on the first one the court will ¡sustain defendant’s motion for a peremptory instruction in their favor; but if the testimony should develop a case requiring its submission to the jury, the court will modify the instructions referred to as herein indicated.
For the reasons stated, the judgment is reversed with directions to sustain the motion for a new trial and for proceedings consistent with this opinion.