xt73bk16mf8w_231 https://exploreuk.uky.edu/dips/xt73bk16mf8w/data/mets.xml https://exploreuk.uky.edu/dips/xt73bk16mf8w/data/51w14.dao.xml unknown 35 Cubic Feet 77 boxes archival material 51w14 English University of Kentucky Copyright has not been assigned to the University of Kentucky.  Contact the Special Collections Research Center for information regarding rights and use of this collection. Louisville and Nashville Railroad Company and Lexington and Eastern Railway Company records Railroads -- Appalachian Region -- History. Railroads -- Kentucky -- History. [199d] Albert Copley v. L&N, Letcher Circuit Court text [199d] Albert Copley v. L&N, Letcher Circuit Court 2016 https://exploreuk.uky.edu/dips/xt73bk16mf8w/data/51w14/Box_22/Folder_4/71808.pdf section false xt73bk16mf8w_231 xt73bk16mf8w , i
, Lil
Thereupon the defendant moved the Court to give to the
Jury the following four Instructions, nuibered reapectively l, 2,
3 and 4 -—

"1. If the jury believe from the evidence that, on
the occasion in question, plaintiff attempted to alight
from defendant's train, when the same reached Stanton,
and in attempting to get off of said train at said tine
and place, was, by the motion of said train, thrown or
caused to fall to the ground and thereby injured, yet, if
the jury further believe from the evidence that plaintiff
made such attempt to aelight from said train, while said
train was in motion and before said train, after reaching
the station at btanton, had come to a full stop thereat,
the jury will find for the defendant.

"2. If the jury believe from the evidence that, on
the occasion in question, plaintiff attempted to alight
from defendant‘s train, while same was in motion and run-
ning at such a rate of Speed that a reasonably prudent
person, in the exercise of ordinary care for his own
safety, ought not to have so attempted, and that, in so
attempting to alight, the plaintiff was, by the motion
of said train, caused to fall or be thrown to the ground
and thereby injured, the jury will find for the defendant.

"3. If the jury believe from the evidence that, at
the time and place and on the occasion in question, plain—
tiff was himself guilty of negligence, which contributed
to cause the accident and injurieséflif any, complained of,
and that but for such negligence, if any, on the part of
plaintiff, such accident and injuries would not have hap-
pened, the jury will find for the defendant, notwithstanding
the jury may also believe from the evidence that defendant”f‘ .Wfix,
was negligent\in not stopping its train.,ae.;%?,;ffi a.,f; ":'. ~1

. . ,,,/'.', I; . ,MMIV/J‘Lfll'w ,

"4. Ordinary care i§ such care as 1S exercised by
an ordinarily careful and cautious personfltnder the same
or similar circumstances to those proved in this case.

Negligence is the want of ordinary care."

To the giving of said Instructions and each of them,
the plaintiff objected and the Court sustained said objection

and overruled and refused to give said Instructions or any of
them, to which the defendant excepted.

Thereupon, the defendant again moved the Court to

ive to the Jury the following three Instructions, designated
respectively, A, B and C -

 (2)
"A. If the jury believe from the evidence that,
on the occasion in question, after defendant's train
had reached its station at btanton, defendant negligently
hailed to stop said train, and further believe from the
evidence that plaintiff, at the time he attempted to
alight from said train, believed and, in the exerdise of
ordinary care under all the surrounding circumstances,
had reasonable grounds to believe that said train would
not be stepped, and plaintiff was thereby compelled to
choose between leaving said train, while same was moving
slowly (if it was so moving at the time) or submit '
to the inconvenience of being carried by said station,
the defendant is liable for any injuries caused by the
motion of said train and sustained by plaintiff in ex-
ercising his choice to get off the moving train, provided
he did not act when a reasonably prudent person, in the
exercise of ordinary care and caution, would have re—
frained from alighting under the circumstances.
"B. The Court instructs the jury that, on the occa-
sion in question, after defendant's train had reached
its station at Stanton, it was the duty of defendant, after
a reasonable Oppormunity so to do and consistently with
the careful and prudent operation of said train and the
safety of its employees and passengers thereon, to stop
said train in the usual manner and at the cuStomary place,
and to keep said train at a standstill for a time reasonably
ling enough for plaintiff to alight therefrom, and if the
jury believe from the evidence that, on the occasion in
question, defendant failed so to stop its train
to aiford plaintiff a reasonable Opportunity to alight from
said train, this was negligence on the part of defendant.
"0. Unless the jury believe from the evidence that,
on the occasion in question, defendant failed to stop its
train through negligence, as such negligence is defined in
Instruction B above, and that such negligent failure, if any
there was, to stop said train was the immediate and proximate
cause of any injuries sustained by plaintiff from the motion
01 the train in his attempt to alight therefrom while said
train was in motion, and that but for such negligent failure
to stop the train the accident and injuries complained of
would not have occurred, the jury will find for the defendant"
To the giving of said Instructions or any of them,
the plaintiff objected, and the Court sustained said objection
and overruled defendant's Motion and reiused to give to the Jury
said three Instructions or any of them, to which the defendant
excepted.
Thereupon, the Court gave to the Jury, over the
objection of the defendant, the following four Instructions,
to the siting of which and each of which the defendant excepted,
viz:-

 (3)

"1. If the jury believe from the evidence that on
the occasion mentioned in the evidence the defendant failed
to step its train at the Stanton station for a sufficient
length of time to enable the plaintiif to alight from the
train, and tfi they further believe from the evidence
that the plaintiff in attempting to alight from the train
fell and received any injuries, and if they further believe
from the evidence that the plaintiff's fall, if they find
he received one, was the direct result of the failure of
the defendant to stop the train at Stanton station, if
they find said train was not so stepped, the jury should,
unless they believe as stated in the 3rd instruction find
for the plaintiff and fix the damages according to the
ith instruction.

"2. Unless the jury believe from the evidence that the
defendant failed to stop the train at Stanton station for

w a sufficient length of time to enable the plaintiff to

I_V alight from the train fell and was injured, and that such

‘ fall was the direct rgsult of the failure of the defendant
to stop its train at Stanton station, the jury should find
for the defendant.

"3. If the jury believe from the evidence that at the
time plaintiff attempted to alight from the train it was
running at such a rate of Speed that a person of ordinary
pruvence and judgment would not have attempted to $_ight
from the train, the jury should find for the defendant.

“4. If the jury find for the plaintiff they should-
allow him such a sum as they may believe from the evidence
will fairly and reasonably compensate him for the pain
and suffering he endured, if any, by reason of the in—
juries he received, and if they find for the plaintiff and
further believe from the evidence that the plaintiff .
received any injury of a permanent character and such as
to permanently impair his ability to labor and to earn
money, the jury should also allow him such further sum as
they may believe from the evidence will fairly and rea-
sonably compensate him for such permanent imnairment, if
any, of his ability to labor and to earn money, but if
there is any iinding for the plaintiff the total should
not exceed 92,000.00, the sum claimed by the plaintiff in
the petition.

"Nine of the jury can take a valid verdict, but
» ii all the jury do not agree upon a verdict, it must
be signed by all who agree to it."

 j
. 74 s.w. 382.

FLEMING v. ST. LOUIS & s. RY. oo.*

(Court of Appeals at St. Louis, Mo. March 3, 1903.)
STREET RAILWAYS -- INJURIES TO PASSENGER -- KEGLIGENCE --
CQNTRIBUTORY NEGLIGENCE -- INSTRUCTIONS.

l. Plaintiff's evidence tended to show that he was
standing on the steps of the rear platform of defendant's street
car while it was crossing a railroad track, having intended to
get off before the car started to cross, and that the conductor,
who had gone ahead to see that no railroad cars were approaching,
boarded the car at the rear platform, while it was in motion, and
in so doing collided with plaintiff and interfered with his footing,
throwing him to the ground. The court instructed the jury that
they must not infer the conductor's negligence from the mere fact
that he struck plaintiff as the latter was getting off or standing
on the car. Held erroneous, as leaving out of View the fact that
the conductor interfered with plaintiff's footing on the steps in
boarding the car.

2. Where the per'lous position of a passenger standing
on the steps of the rear platform of a rapidly moving street car was
seen by the conductor, who was attempting to heard the car, it was
negligence on the part of the conductor to mount the steps in such
manner as to collide with the pa senger and throw him to the ground.

3. In an action against a street railway for injuries
to a passenger, defendant set up in anSWer that plaintiff was injured
by reason of his contributory negligence in jumping off a moving
car at an unusual place. The court charged that if plaintiff had
taken a position on the lower step of the rear platform of the car
for his own convenience in getting off at a point beyond the rail—
way tracks which they were croWfiing, and knew that the conductor had
gone ahead to signal the car when to cross the tracks, and would
again get on, he was guilty of contributory negligence if he did not
exercise ordinary care to avoid a collision with the conductor when
the latter was attempting to board the car. HELD, that the charge was
not warranted by the plea.

4. Where plaintiff's evidence showed that he was on the
rear platform of defendant‘s street car, in the act of getting off
at a place Where it had stepped before crossing some railroad
tracks, but was prevented from doing so by the sudden starting of
the car and its rapid motion, and there was no evidence to the
contrary, it was error 50 predicate a charge of contributory
negligence on the assumption that he had taken his position
on the rear platform, not for the purpose of getting off before
reaching the railWay tracks, but for his own convenience in getting
01f at some point beyond them.

APPEAL from Circuit Court, St. Louis County; John W.
Mcfilhinney, Judge.

Action by John Fleming against the St. Louis & Suburban
Railway Company to recover for personal injuries. Verdict for
defendant, and from an order granting a new trial defendant aooeals.
Affirmed.

On the part of the plaintiff the evidence tends to
prove that on October 20, 1900, plaintiff, in company with two
friends, boarded one of defendant's cars on the Olive street road,
in St. Louis county, intending to go to the Kinlooh race track.

 (2)
The car proceeded north until it reached a point where the
street railway tracks cross the treats of the Wabash Railroad. At
this point there is a platform, where the cars going north always
stop, and where passengers regularly get on and off the cars. When
this point was reached, the car on which plaintiff was traveling
stepped about one minute, and the conductor got off from the front
platform and walked ahead 0n the tracks of the Wabash with a flag,
and, seeing no cars approaching on that road, gave the motorman
a signal to go ahead. A number of peeple got oi: the car before
it Was started up, including plaintiff's two friends, whom
plaintiff followed to the rear platform, and was in the act of
getting off when the car was started up with a jerk and moved ahead
rapidly. Plaintiff then thought it was not safe to alight, and
concluded to wait until the Wabash tracks were passed before get—
ting off, and remained on the steps of the platform, holding to
the car. While he was in this position, as the car was passing over
the Wabash tracks, the conductor boarded the car at the rear plat-
form, and in doing so collided with the plaintiff, and his legs
became entangled with those of plaintiff, causing plaintiff to be
thrown to the ground and injured.

For defendant, the evidence tends to prove that when
the car stopped near the Wabash tracks the conductor got off his
car from the front platform, went to the middle of the Wabash
track, and, seeing the way was clear, signaled the motorman
to go ahead, and when the rear of the car reached him he boarded
it, but did not touch the plaintiff in doing so; that plaintiff
lost his balance and fell off; that the car stopped on the south
side of the tracks from 1 1/2 to 2 minutes, and a number of people
got off.

The petition alleged as negligence the following: "That
plaintiff was standing on the rear platform of said car, and that,
by the careless and neglectful act of one of defendant's servants
who was engaged in operating said car, the plaintiff was struck by
defendant's servants who was engaged in Operating said car, the
plaintiff was struck by defendant 3 servant, and was thrown from
said platform onto the ground, and was dragged by said car a dis-
tance of about fifteen feet."

The answer pleaded the following contributory negligence;
"And further answering, defendadt says that whatever injury, if
any, plaintiff sustained, was the direct result of his own neg-
ligence and carelessness, and of his negligently and carelessly
attempting to alight from a moving car at an unusual place, and
from negligently and carelessly jum ing off a car while in motion."

Plaintiff testified that he had never been on defend—
ant's road before; that he knew that the conductor had gotten off
the front platform, and had gone on the Wabash tracks with a flag.

Among other instructions for the defendant, the court
gave the following: "(2) The court instructs you that you must not
find nor infer that the conductor was negligent from the mere fact
(if you find it to be a fact) that he struck plainti;f as plaintiff
was getting off or standing on the car." "(6) If you find from
the evidence that plaintiff, Fleming, voluntarily took a position
on the lower rear step of the car while it was south of the Wa-
bash Railroad tracks, not for the purpose of getting off south of
said tracks, but merely for his own convenience in getting off at
some point north of said railroad tracks, and that the conductor
of the car, while said car was stopped at the landing platform
south of said railroad tracks, had gone forward, in the usual
course of his duty, to signal the car when to cross said tracks,
and to again get upon said car, and that plaintiff Fleming knew
this, then it was the duty of said Fleming to use ordinary care
and watchfudness to keep out of the way of the conductor when he
should attempt to get back into the car; and if you further find

 (3) -

that he did not use and exercise ordinary care and watchfulness
to has; out of the way of the conductor as the conductor was
getting onto the car, and thereby directly oon.ributed to the
injuries, if any, sustained by him, then your verdict must be
for the defendant, the Suburban Railway Company."

The jury returned a verdict for the defendant.
A timely motion for new trial was filed, which the court sus~
tained on account of error in instructions given for defendant,
and a new trial was ordered. From this order defendant duly
anpealed.

Dawson & Garvin, for appellant. Wm. 3. Fish, for
respondent.

BEAND, P.J. (after stating the facts). Instruction No.
2, given for defendant, leaves out of View the fact that the con-
ductor tangled his legs up with those of plaintiff when he boarded
the car, and it is erroneous for the further reason that the jury
would have been warranted in finding the conductor guilty of
negligence from the circumstance that in getting on the car he both
struck the plaintiff and so interfered with his footing on the
steps as to throw him to the ground. The plaintiff's position =
on the steps of the rear platform while the car was moving rapidly;
was perilous. His position was seen by the conductor, and it Was

[negligence in him to increase the plaintiff's peril by coming in con-

;tact with the plaintiff, and, if he could not mount the steps with-

f gout colliding with plaintiff, then he should have remained off the
gear, or boarded it at some other place of ingress.

; The sixth instruction for defendant is predicated upon
facts (therein cited) of which there is not a ray of evidence to be
found in the record, nor was it authorized by the plea of contribu-
tory negligence alleged in the answer.

lilaintiff testified, and in this he is corroborated by
his two friends, that he was on the steps, in the act of getting
off on the south side of the Wabash tracks, out was
prevented frOm doing so by the car starting up suddenly and running
raeidly, and there is no evidence to the contrary. It was error,
therefore, to instruct the jury that if they found from the
evidence that plaintiff voluntarily took a position on the lower
step of the platform of the car while it was south of the Wabash

Railroad tracks, not for the purpose of getting off south of
said tracks, but merely for his own convenience in getting off at
some other point,etc.

There was no error in sustaining the motion for a new
trial. The judgment is affirmed.
REYBURN AND GOODE, JJ., concur, the latter in the first

paragraph of the opinion. .

*******************

 103 E}. Alpp‘ Reps. 169. ~

MARY ANN GARNEAU, ADM‘X, v. ILLINOIS CENTRAL K.K. CO.

1. RAILROADS - Passen er In ured by Accident. -~ Where
a passenger is injured through an accident, not the fault of the
carrier, there can be no recovery.

2. SAME -- Not Their Duty to maintain Platform Along
Entire Right of Way. -- It is not the duty of a railroad company, _
for a failure to perform which negligence can be imputed, to cons-
truct and maintain along its entire right of way adjacent to the
rails of its track a platform so contrived that a person acciden-
tally falling from its train can suffer no injury by being struck
or run over by the train.

TRESPASS ON THE CASE. —- Death from Negligent act. Appeal
from the Circuit Court of Douglas County; the Hon. SOLON PHILBRICK,
Judge presiding. Heard in this court at the may term, 1903. Af—
firmed. Opinion filed August 28, 1903.

ROY F. HALL, J. M. NEWMAN and JOHN H. CHADNICK,
attorneys for appellant.

ECKHART & MOORE, attorneys for appellee; JOHN G. BRENNAN,
of counsel.

Mr. JUSTICE BAUME delivered the opinion of the court.
Appellant brought this action to recover damages for the death of
her son, Oliver P. Garneau, alleged to have been caused by the
wilfful and negligent acts of the defendant and of its servants.

There are twelve counts in the declaration. The first
five counts charge a willful assault upon the deceased by the por-
ter employed by the defendant, causing the deceased to fall from
the train; the sixth count charges that the porter negligently
stepped in front of the deceased, While he was on the steps of the
train, whereby he lost his footing and fell from the car; the
seventh count charges the porter with the doing of the same act
wilfully and recklessly; the eighth count charges the porter with
having negligently obstructed the safe passage of deceased while he
was boarding the train; the ninth count charges the porter with the
doing of the same act willfully; the tenth count charges that the
defendant negligently failed to stop its train a sufficient length
of time to enable deceased to safely board it and the servant of

' defendant with having negligently obstructed his safely getting on
the train by placing himself in front of the deceased; the eleventh

 ' (2)

count avers that it was the duty of defendant to construct and

. maintain its platform at Tuscola in such safe manner as not to
cause injury to its passengers in case any of them should by accident
lose their footing after getting on the steps of the cars, and fall
off of the steps while the train was in motion, and charges that the
defendant negligently failed to perform that duty; the twelfth count
avers the sane duty with respect to the platform and charges that the
construction of the platform was so negligent as to amount to wan-
tonness and recklessness. The cause of action as averred in the
first five counts of the declaration, is expressly abandoned.

At the close of plaintiff's evidence, the court, on motion
of defendant, instructed the jury to find the defendant not guilty,
and after motion for new trial, which was overruled, rendered
judgment against plaintiff for costs.

The question to be determined on this appeal, is, Whether
there is any evidence in the record, tending to establish the
facts necessary to sustain a verdict against defendant for causing
the death of plaintiff's intestate, as charged in the declaration.

On the first day of February, 1903, Oliver P. Garneau, a
young man twenty—four years of age, purchased a railroad ticket at
Tuscola, for passage on one of defendant's trains to Arcola. The
train arrived at Tuscola about ten o'clock P.M., stOpping at the sta-
tion platform, a little south of its usual stOpping place. When the
train stopped, the deceased, with an overcoat over his shoulder, got
upon the steps of the car platform at the front end of the car, the

means provided for entrance into defendant's cars; that immediately
after having safely boarded the train, the overcoat carried by de-
ceased fell from his shoulder to the ground; that the train was then
in motion and deceased stepped off the train to recover his over-
coat; that as he dis so, the night operator of defendant picked up
the overcoat and handed it to the deceased; that deceased then,

when the train was in motion at an accelerated Speed, attempted to

 r
(3)
board the train by the steps to the platform at the rear end of the
same car; that having mounted the first or second step, he was seen
to fall to the platform and roll under the train, by which he was
killed. Three witnesses testified that the colored porter on de—

' fendant(s train boarded the same car with deceased, either immediatel:
before or following deceased, and two witnesses testify that as he did
so, they saw his arm "go out " or "thrown out" and saw deceased fall.
The theory of plaintiff is that deceased was knocked or pushed off the
train by the porter, or that he so obstructed deceased's efforts to

board the train as to cause deceased to fall off. So far as ap-

pears from the evidence the "going out" or "Throwing out" of the
pOrter's arm was the usual motion of a person's arm when taking hold
of the guard rail, to board a train, and one witness so characterizes.
it. There is no evidence that the porter's arm was extended toward
deceased or came in contact with deceased, or that he in any other
way interfered with deceased. The proof in the case does not merely
leave the cause of deceased's falling from the train in doubt,
but it fails to adduce anything to which it could be attributed. It
was manifestly and clearly an accident, and there can be no recovery
under any one of the first ten counts of the declaration. * d *

, ‘ The court did not err in instructing the jury to find the
defendant not guilty and the judgment will be affirmed.

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Albert Copley, Plan-tiff.

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were semiovsd heifers the first trial of this case 13.215. in the
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