104 Ky. 603 | Ky. Ct. App. | 1898
delivered the opinion or the court.
The facts upon which appellant seeks to recover damages from appellee in this action, as stated in his original and amended petitions, are that he was a passenger on one of appellee’s trains from Winchester to Elkin, and that at a point between those places, while the train was moving rapidly and passing over a high trestle, he was
Two legal questions are presented: First, is a railroad company under legal obligation to stop its train, and rescue a passenger who has been thrown or pushed therefrom without any fault on its part, under circumstances where, unless rescued, he is liable to perish or suffer great injury? And, second, does the petition in this case allege such a state of fact as made it the legal duty of defendant to have done so in this instance? The precise question presented here is a novel one, and our attention has not been directed to a case in which it has been considered or passed upon. From the time the relation of carrier and passenger commences, the passenger is necessarily, in a large degree, under the protection of the carrier, and it is bound to exercise the strictest vigilance in seeing after his safety. It
On December 15, 1898, response to the petition for a rehearing was delivered by Judge Burnam:
The rule that a plaintiff is not required to allege matters which are peculiarly within the knowledge of a defendant has no application “where the matter is such that its affirmation is essential to the apparent or prima facie right of recovery of the party pleading. There it ought to be affirmed or denied by him in the first instance, though it may be such as would otherwise properly form the subject of objection on the other side.” See Steph. PL, p. 252. The defendant’s paramount duty was to transport its passengers safely, and to avoid the possibility of accidents from collisions with other trains. The obligation on it to stop its train to rescue a passenger who, without-fault on its part, had fallen from the train, was wholly subordinate to its obligation to others; and, before appellant could rightfully complain that appellee’s failure to assist him was negligence, he must allege facts which made it the' legal duty of appellee to have rendered such assistance; and, without allegations showing that under the conditions which obtained appellee could have safely rendered -such assistance, no prima facie case is made out. The court can not assume that a train can be stopped at any but regular stations without incurring danger to the passengers thereon, which it is the supreme duty of those in