Louisville & Nashville R. R. v. Eakin's Adm'r

JUDGE BURNAM delivered tjie opinion of the court. Appellee alleged in his petition that in January, 1895, his intestate was a passenger on appellant’s train from the city of Henderson to Robards’ Station, a regular station and stopping place for receiving and discharging passengers; that when the train reached the station it did not stop long enough to enable his intestate to get off, and that while endeavoring to alight from the train those in charge of, with gross and willful negligence, put the train in motion and threw decedent under the wheels thereof, and that the train ran over him injuring him so severely that he died about four hours after receiving the injury. The answer denies the negligence charged, and pleads that the train was stopped at the station long enough for appellee’s intestate to leave it with safety, but that he did not avail himself of the stop but waited until the train was in such motion that he could not safely alight, and then — 469 — negligently attempted to get off, whereby he received the injury complained of, and that but for his negligence in getting off the train while it was in motion he would not have been killed. The first trial resulted in a verdict and judgment for plaintiff, which was set aside by the lower court, to which ruling appellee excepted, prayed an appeal and prepared a bill of exceptions. A new trial was granted, which resulted in the verdict and judgment appealed from. A motion for still another trial, based on numerous grounds, having been overruled, the case and judgment are brought by a bill of exceptions to this court for review. Appellee made no motion to substitute the first verdict for the second, and the order setting aside the first verdict and granting a new trial is not before this court. The chief ground relied on for reversal is that the court erred in giving instructions Nos. 1, 2, 3 and 4, but chiefly in refusing to give a peremptory instruction asked by appellant; in permitting appellee to prove that decedent was a married man and left three children, one of whom was born since his death, and in admitting evidence to the. effect that one Royster attempted to alight from the train at Robards’ Station but failed to do so. The testimony shows that decedent was a young man in fine health, about twenty-nine years of age, a farmer by occupation, and of ordinary intelligence; that before the train arrived at the station it was announced by the officials in charge thereof; that it consisted of a baggage-car, a smoker, a ladies’ car and a sleeping-car; that decedent occupied a seat in the ladies’ car next to the sleeper, — 470 — which was the rear car; that the platform of the station was only about sixty feet long, and that when the train came to a halt, the front end of the ladies’ car was along side the station platform and the rear end was in the middle of the street; that ten passengers were due to alight from the train at this station and that seven of them alighted on the station platform between the ladies’ car and the smoker, the conductor and porter being between these cars on the platform assisting them to alight, some of the passengers coming out of the ladies’ car and some out of the smoker; and that decedent and one other passenger, McMullin, went out the rear door of the ladies’ car. There is considerable diversity in the statements of witnesses as to the exact location of decedent at the time the train started, some of them testifying that when he came out of the coach onto the platform the train was stationary, and that as he was going down the steps it moved off; that the train was coupled together with automatic couplers, and that the whole train moved at once without any jerking, there being little or no slack; while other witnesses testify that the train started before decedent had gotten out of the .car onto the car platfbrm; that it had moved about fifty feet on a down grade and had attained a speed of about five miles an hour at the time he attempted to alight; that the rear end of the car had been drawn up so that it was alongside the station platform, and that while he was on the steps of the car he looked around and seemed' to hesitate about attempting to alight. And these statements are corroborated by the testimony of appellee, that decedent told him before his death that some one said that he “could make it.” — 471 — There is also diversity in the'statements of witnesses as to the promptness with which decedent got ready to leave the car, after the announcement of the station, a number of them testifying that he did so promptly; while another witness, who seems to have had special opportunities for observing him, testifies that decedent occupied an inverted seat opposite to him; that he seemed “easy about getting out,” and kept his seat about half a minute after the train stopped; that he appeared slow in his movements, and that he told him to hurry up. The conductor testifies that before giving the signal to start the train he looked down the aisle of the ladies’ car, and saw no one in the aisle, and supposed that all had safely alighted, before he gave the signal to start, corroborating the testimony of wituesses that decedent had left the coach and was on the car platform at this time. It may be fairly deduced from all the testimony that the train was in motion at the time decedent attempted to get off and fell under the wheels of the rear car and that he did so without the knowledge of any of appellant’s agents in charge of the train. It is contended for appellant that the attempt of decedent to alight from the train, while it was in motion, was per se negligence; that appellant can not be held responsible for the injury resulting therefrom, and that the motion for a peremptory instruction should have prevailed. There is considerable authority to support this contention, but it seems to us that under the testimony the question as to whether the attempt on the part of decedent to alight (under all the circumstances surrounding the act) — 472 — was negligence, was properly submitted to the jury. It was the duty of appellant to stop its train at the station a sufficient length of time to enable passengers to alight therefrom with safety, and it was the reciprocal duty of those passengers who desired to get off to do so without unnecessary delay; and if appellant’s servants in charge of this train disregarded their duty they were guilty of the first act of negligence, and the fact that decedent voluntarily attempted to alight, under the circumstances of this case, is not conclusive presumption of negligence on his part. “As a rule it may be said that where a passenger, by the wrongful act of the company, is compelled to choose between leaving the cars while they are moving slowly, or submitting to the inconvenience of being carried by the station where they desire to stop, the company is liable for the consequences of the choice, provided it is not exercised negligently or unreasonably.” (See Wood on Railroads, vol. 2, p. 1299.) “It can not be said, as a matter of law, independently of the statute, that it would be under all circumstances an act of negligence for a passenger to attempt to alight from a moving train. But the question is ordinarily one of fact, tc be determined by the jury from all the circumstances of the transaction. It is true a case might arise in which it would be the duty of the court to determine the question as matter of law. This would be true if there were no disputed facts, and but one conclusion could fairly be drawn from the facts established. But if these facts are in dispute, or if different conclusions might fairly be — 473 — reached by different minds from the facts established, the question is for the jury.” (See Raben v. Central Iowa Ry. Co.., 74 Ind., 735, and Whitsett v. Chicago, R. I. & P. Ry. Co., 67 Iowa, 150.) In passing upon the question of the submission to the jury of a question of negligence, in Railroad Company v. Stout, 17 Wall., 657, the United States Supreme Court, Mr. Justice Hunt delivering the opinion, said: “It is true, in many cases, that where the facts are undisputed the effect of them is for the judgment of the court, and not for the decision of the jury. This is true in that class of cases where the existence of such facts come in question rather than where deductions or inferences, are to be made from the facts. ... If a sane man voluntarily throws himself in contact with a passing engine, there being nothing to counteract the effect of this action, it may be ruled as a matter of law that the injury to him resulted from his own fault and that no action can be sustained by him or his representatives. So if a coach-driver intentionally drives within a few inches of a precipice, and an accident happens, negligence may be ruled as a question of law. On the other hand, if he had placed a suitable distance between his c' ach and the precipice, but by the breaking of a rein or an axle, which could not have been anticipated, and an injury occurred, it might be ruled as a question of law that there was no negligence and no liability. But these are extreme cases. The range between them is almost infinite in variety and extent. It is in relation to these intermediate cases that the opposite rule prevails. Upon the facts proven in such cases, it is mat — 474 — ter of judgment and discretion, of sound inference; what is the deduction to be drawn from the undisputed facts. . . . It is this class of cases and those akin to it that the law commits to the decision of a jury.” “Whether alighting from a moving train constitutes negligence or not is a fact to be determined by the jury trying the cause, taking into consideration all the circumstances in connection with the alighting.” (See L. & N. R. R. Co. v. Crunk, 119 Ind., 549.) In the case of the Evansville R. R. Co. v. Duncan, 28 Ind., 447, the court, in speaking of a person leaving a train while in motion, said: “If the leap was made under such circumstances that a person of ordinary caution and care would not have apprehended danger therefrom, then it was not such an act of carelessness as would relieve the defendant from the responsibility otherwise resting upon it.” The testimony in the case is conflicting as to whether the train stopped at the station a sufficient length of time to enable the passengers to alight therefrom with safety, and also as to the promptness of decedent in leaving the train after it had stopped; and there is considerable diversity in the testimony as to decedent’s exact location on the car when the train started, and as to the rate of speed it had attained at the time he attempted to alight. All these facts must be considered in ascertaining whether decedent’s effort to get off the train when he did so was negligence on his part, and necessarily required the intervention of a jury for the proper determination of their bearing upon the issue involved, and justified the — 475 — overruling of appellant’s motion for a peremptory instruction. TYe will now consider the instructions given by the court which were excepted to by appellant. By the first instruction the jury were told: “When the train in question arrived at Robards’ it was the duty of those in charge to hold it long enough to enable the plaintiff’s intestate to have left the train and reached the station platform with ease and safety, the number of passengers leaving' at that station being considered. If they did not hold it such length of time they are guilty of negligence, and if said Eakins was killed in attempting to leave the train (without negligence on his part as hereinafter defined) they will find for the plaintiff the damages sustained by the widow and children, not exceeding the amount sued for, $20,000.” There is no time fixed by law for a train to remain at a station. This necessarily depends on the number of passengers getting on and alighting therefrom and the amount of business to be transacted at that point, but a train must stop long enough at stations to afford passengers reasonable time to alight therefrom with safety after its arrival, and the passengers owe the corresponding duty to get off without unnecessary delay, as the prudent and careful operation of railway trains require that there should be promptness and regularity in their arrival and •departure from stations, and dispatch is a necessary element in their proper management. It was no part of appellant’s duty to hold its train until deceased could leave it with ease, and the addition of this word to the instruc — 476 — tion was calculated to mislead the jury as to appellant’s duty in affording decedent time to get off. The word is. vague and indefinite, and the Superior Court of Kentucky,, in L. & N. R. R. v. Abell, 14 Rep, 239, in passing upon an instruction where the jury were told that “it was the duty of appellant to stop its train long enough to allow theappellee to alight therefrom with safety and comfort said: “The addition of the word 'comfort’ to the instruction was unauthorized. To say that passengers must have-time to- leave railroad trains with comfort would make it incumbent on those in charge to inquire into the physical condition of each passenger. This has never been, and of course, could not be required. If the employes of the company are notified of the inability of a passenger to leave the train in the usual time, they are bound to give time which in his condition would be reasonable time to do so-with safety. In all these cases, the question of what is. reasonable time is a question of fact to be determined by the circumstances of each case, but as a general rule companies can only be required to afford reasonable time to passengers, whether young or old, to leave the cars with safety.” This instruction is objectionable also for another reason.. It directed the jury to fiud for the plaintiff “the damages sustained by the widow and children, not exceeding the-amount sued for.” They were not parties to the action,, and this part of the instruction, when considered in com nection with the testimony which was permitted to go the jury over the objection of appellant, — that decedent was a married man and left three children, — it was extremely — 477 — In Sedgwick on the Measure of Damages, 7 Ed., vol. 1, note, it is said: “In an action by a woman against a railway company for damages for personal injuries, neither the death of her husband from the same cause, nor the fact that she has children dependent upon her for support, is admissible to increase damages.” In City of Chicago v. O’Brennan, 65 Ill., 163, the court said: “Was this evidence admissible? If it was, then it would have been competent to have gone further and. shown all the circumstances of the family, such as that the mother was an invalid; .that one of the daughters was. blind; that one son had accidentally lost a leg, etc., if such had been the case, so as to present a most pitiable picture of a helpless family dependent upon appellee for support as a lecturer. For, as the evidence had no place in the case, but as a stimulant to the jury, it would have been just as competent to make the stimulant strong as weak. But was it competent at all? It is an elementary rule that evidence must be confined to the points at issue. There was no point in issue to which this evidence had any relevancy. This sort of attempt to foist irrelevant mat-bus upon rhe attention of the jury with a view to creating a personal interest is too often the secondary resort of a party on the witness stand." And this rule has received the approval of this court in a number of recently decided cases. (See Standard Oil Co. v. Tierney, 92 Ky., 377; C. N. O. & T. P. Ry. Co. v. Sampson’s Admr., 16 Ky. L. Rep., 819, and L. & N. R. R. Co. v. Kelley’s Admr. 100 Ky. 421. — 478 — prejudicial, as it diverted tlie attention of the jury from the duty of fixing the actual sum of money which' would fairly compensate the estate of decedent for the destruction of his power to earn money and directed it to the affliction which had overtaken the family by reason of his death. “There is no rule of law under which the estate of a deceased father, of a dozen children can properly recover, on account of his death, more than the estate of such a father of one child or none. The real question in the case is, what was the value of decedent’s life to his estate, and the number of his children can have no legitimate bearing upon that question. And the great weight of authority supports this view.” (See Beams v. Chicago R. R. Co., 26 Iowa, 363.) And the principle laid down by the text writers on this question is stated in Patterson on Railroad Accident Law, 372 as follows: “Proof of the number of a family dependent upon a person injured, or of his or their property, is not admissible for such testimony would obviously tend to prejudice the jury or divert their minds from the real issue in the^case.” In Thompson on Negligence, vol. 2, 1263, the rule is thus stated: “It is clearly inadmissible to introduce evidence of the number of persons dependent upon decedent for support.” In Rorer on Railways, vol. 2, 1009, it is said: “That a plaintiff in an action for an injury to Ms person inflicted by negligence should not be allowed to prove That others were dependent upon him for support.’ ” — 479 — The second instruction is also objectionable because it told the jury, substantially, that deceased could not have been negligent unless the train had been held long enough for him to leave it with ease and safety. In the fifth instruction the court said: a “If the jury find for the plaintiff, the measure of damages will be the capacity of deceased to earn money coupled with his expectation of life.” This instruction is in direct conflict with a number of recent adjudications of this court. Under it, all that it was necessary for the jury to do to arrive at a verdict was to determine how much deceased was capable of earning in a year and multiply that amount by his expectation of life. The true measure of damages is not the capacity of the deceased to earn money, but is such a sum as will reasonably compensate his estate.for the destruction of his power to earn money, and in arriving at the amount of this sum the jury are authorized to consider all the testimony in the ease bearing upon this question. This question has been so thoroughly and carefully considered by this court in L. & N. R. R. Co. v. Graham’s Admr., 17 Ky. L. R., 1232; L. & N. R. R. v. Kelley’s Admr., 100 Ky. 421, and C. & O. Ry. v. Lang’s Admr., 100 Ky. 221, that any further elaboration of this idea is unnecessary. For the reason indicated the judgment is reversed and the cause remanded for proceedings consistent with this opinion.