Louisville & Nashville R. R. v. Weathers

MAYFIELD, J. This is an action by a blind passenger against a. common carrier to recover damages for inconvenience and sickness, the result of the carrier’s ■placing him in a coach filled with tobacco smoke and fumes. The grossest wrong alleged was the placing of ■plaintiff in the smoker coach against his wishes and over [53] his protests, after the agents were notified of the fact that the tobacco smoke would make him sick. The sole injury alleged or proven was that plaintiff was thereby caused to inhale tobacco smoke, which made him sick and caused him to vomit, by reason of which he suffered mental pain and anguish. The plaintiff’s evidence tended to prove the averments. The defendant’s evidence-denied that its agents put plaintiff in the smoker, or that they had any knowledge or notice of the fact that tobacco smoke would make him sick, and further tended to show that it removed him to another coach upon request from his sister so to do, and that the plaintiff did not complain of being sick, nor object to riding in the-smoker. The third count stated a cause of action, and was not subject to demurrer on the ground that it failed to allege that defendant’s agents knew of the fact that tobacco smoke made plaintiff sick, and that it failed to allege that he was placed in the car against his protest or objection. While these allegations might be necessary in order to state a cause of action for wanton negligence or willful injury, they are not necessary in an action for simple negligence. The count alleged the relation of passenger and carrier, the right of the passenger as for a first-class coach, and a breach of duty by the carrier in wrongfully placing him, a blind passenger, in a second-class or smoking car. .The court properly overruled the demurrer to this count. The fourth count was good, for the same reasons assigned ábove to the third, and for the additional reason that it alleged, in effect, that the plaintiff was wantonly placed in the smoker over his protest. There was no error in refusing any of the four charges to the defendant, as to which error is assigned. The first requested a verdict for defendant’ unless the employe, placing plaintiff in the car against his expressed [54] will, , had notice that plaintiff would, or would likely, be made sick on tobacco. This was not necessary to the right of recovery, though it might be necessary as for punitive damages (but as to this we do not decide). The second charge requested a verdict solely upon the failure of the conductor to have notice of the fact that tobacco smoke would make plaintiff sick. The defendant might well be liable, under the evidence, in the absence of any such notice or knowledge on the part of the conductor. The third charge required the court to peremptorily instruct the jury that defendant’s agents had the right to assume that no damage or injury would result to plaintiff unless the conductor or flagman had actual notice that plaintiff was subject to be made sick on tobacco smoke. The plaintiff might have been' entitled to recover under evidence that he was not made sick on tobacco smoke. This- did not go to the entire right of recovery, but only to the degree of the negligence or the amount of damages. There was evidence tending to support simple and wanton negligence on the part of defendant’s agents, and thus to support or authorize actual and punitive damages. Therefore the general affirmative charge could not properly have been given for the defendant as to any count of the complaint. While the verdict is probably large, yet, under the plaintiff’s evidence and that of his sister, we are not willing to reverse, the trial court in denying the motion for a new trial on the ground that the verdict was excessive. The judgment of the city court must be affirmed. Affirmed. Dowdell, C. J., and Simpson and McClellan, JJ., concur.