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form, extending over it some four or five inches. After the boy had reached the platform and the lady had entered the car, the boy, on leaving the platform, stepped with one foot into a hole that had been caused by the rottening of the plank, causing the appellee to fall, with one leg protruding, under the wheels of the cars as they moved off, crushing his ankle and foot in such a manner as required his leg to be amputated. That the company knew of the defect in the platform, or by the exercise of ordinary care should have known it. He claimed and was awarded compensatory damages for the injury sustained. The case went to the superior court, and was there affirmed, and an appeal was then prayed and granted to this court.
The boy testifies as to the fall caused by the defect in the platform, and the injury received. The hole in the platform at the place where the boy says he was iujured was visible, and caused by the decay of the timber; blood was seen near the place where the injury occurred, and he was carried from the spot by those who beard his cries of distress in that direction.
The foot or ankle was crushed as the train moved off. That the platform was much out of repair, and had been for a long time, is sustained by the weight of the testimony, and the injury to this boy caused by this defect in the platform, that should have been observed and remedied by the defendant's employees. We are satisfied from the testimony that the injury resulted from the causes alleged in the petition; but the appellant, in making out its defense, insisted on proving by the appellee and others that he was in the habit of jumping on the cars when they stopped at the station, and had been warned of the danger, and hence the jury had the right to infer that it was the boy's own negligence that caused the injury, and not the defect in the platform. If the habit of the boy bad been established, as the appellant offered to prove, it would not have authorized the jury to say that he was steal. ing a ride on the cars, and in getting off caused the injury. It is shown that he was sent to the depot by the lady with whom he lived; that he accompanied the passenger to the train at her instance, and had the right to be on the platform at the place where he was injured. That he was at this particular spot, and was injured by reason of the defective and rotten plank, is sworn to positively by the boy, and his statement corroborated by circumstances that are convincing; and the mere fact that he had been in the habit of exposing him. self to danger on former occasions, or had theretofore placed himself in positions where he might have been injured in the same manner, was not only insufficient to contradict the ter timony on that subject offered by the plaintiff, but was in. competent for any purpose. Neither the boy's babits or hig bad character constituted & defense to the recovery. The opinions of one or more witnesses for the appellant were per mitted to go to the jury, to the effect that the boy was not injured in the manner stated by him, and an instruction given by the court, to the effect that if the boy was stealing a ride on the train of appellant, and thereby caused the injury, the company was not responsible. Whether there was proof to authorize such an instruction it is not necessary to determine, but the fact that he had previously been guilty of such negligence threw no light on the issue made. Such misconduct on the part of the appellee did not prevent him from recovering, if injured by reason of this defect in the platform.
In Gahagan v. Boston etc. R. R. Co., 1 Allen, 187, 79 Am. Dec. 724, the issue presented was as to the negligence of the company in the use of the highway at the time the plaintiff's intestate received the injury for which the recovery was asked. The plaintiff offered to prove the habit of the company at other times in the use of the highway, to show negligence, and the court held that it had no legitimate bearing on the issue, and was properly excluded.
There was evidence for both the appellee and the appellant, showing the movements of the boy from the time he reached the depot until he was injured, and from that evidence the jury returned their verdict. “As a general rule, therefore, it is inadmissible when the issue is whether A did a particular thing, to put in evidence the fact that he did a similar thing at some other time. To admit evidence of such collateral acts would be to oppress the party implicated, by trying him on a case as to which he has no notice to prepare, and soinetimes by prejudicing the jury against him by publishing offenses of which, even if guilty, he may have long since repented, or may have long since been condoned”: 1 Wharton on Evidence, sec. 29.
The effect of such testimony as was excluded in this case, if permitted to go to the jury, would have been to prejudice the jury, or at least lead their minds to the conclusion that if a bad boy, although injured by the neglect of the company, his measure of compensation should be lessened by reason of his reckless or mischievous habits.
We perceive no objection to the instructions; in fact, they were more favorable for the appellant than they should have been; nor does the alleged misconduct of the juror or counsel for the defendant authorize a reversal.
The judgment below is therefore affirmed, with damages.
NEGLIGENCE — EVIDENCE – Evidence of previous accidents of a similar nature are not admissible in an action against a railroad company for negli. gence: Southern R. R. Co. v. Kendrick, 40 Misa. 374; 90 Am. Deo. 332, and note; Bridger v. Asheville etc. R. R. Co., 27 8. C. 456; 13 Am. St. Rep. 653; Hudson v. Chicago etc. R. R. Co., 59 Iowa, 581; 44 Am. Rep. 692, and note 694–696; Parker v. Portland P. Co., 69 Me. 173; 31 Am. Rep. 262; Hodges v. Bearse, 129 Ill. 87.
In an action for personal injuries sustained by reason of an obstruction in a highway, evidence that others passed safely is not competent: Branch v. Libbey, 78 Me. 321; 57 Am. Rep. 810, and note.
Evidence that other railroad companies maintained bridges similar to tho one by which plaintiff was injured is not competent in an action by an om. ployee for injuries sustained through the negligent construction of a railroad bridge: Louisville etc. R’y Co. v. Wright, 115 Ind. 378; 7 Am. St. Rep. 132 To the same effect is Engel v. Smith, 82 Mich. L.
LOUISVILLE AND NASHVILLE R. R. Co. o. Logan.
(88 KENTUCKY, 232.] RAILROADS – RIGHT TO EJECT DRUNKEN AND DISORDERLY PASSENGER
Where the conduct of an intoxicated passenger, too drunk to take caro of himself, is so violent or indecent as to excite alarm, or insult other passengers, or if he interferes with the management of the train by pull. ing the bell-rope, or otherwise, or threatens, with an opened knife, to take the life or do bodily harm to the conductor, or attempts to deter or intimidate him while in the performance of his duties, he has the right to put him off the train at night and between stations, using no more force than is reasonably necessary for the purpose, and putting him off the track out of the way of that train. The company is not then liable if such passenger subsequently goes upon the track, and is run over and killed by another train belonging to its William Lindsay and W. J. Lisle, for the appellant. Harrison and Belden, for the appellee.
LEWIS, C. J. Appellee, widow of E. V. Logan, brought this action to recover damages for destruction of his life by the alleged willful neglect of the servants of appellant, the material facts of the case being as follows:
The deceased, about half-past ten o'clock at night, June 19, 1883, at Lebanon, got on a passenger train bound from Louisville to Knoxville, Tennessee, to go to a station where he resided, fourteen miles distant. He was at the time intoxicated; stumbled or slipped and fell on the depot platform; was helped upon the car platform; and, in the opinion of two witnesses, too drunk to take care of himself, though he was also boisterous, profane, and disposed to be quarrelsome.
Upon being requested by the conductor, soon after the train started, to pay his fare, he asserted he had paid it, which was untrue, and in reply to the statement of the conductor he had not, he said, with an oath, he would not; that there were not men enough on the train to put him off, at the same time pulling out his knife, and did not pay until the conductor and brakeman had proceeded with him to the car platform for the purpose of putting bim off. After receiving his fare, the conductor left him in the smoking-car, where his seat was, and proceeded to the ladies' car to collect fare from those who had boarded the train at Lebanon, and while so engaged the deceased, leaving the smoking-car, went behind him, having, as some of the witnesses testify, a knife opened in his pocket, and assumiug a menacing attitude, applied to him, in a loud tone of voice, such profane, opprobrious, and threatening language as to cause general excitement among the passengers, one lady being so much frightened that she implored the conductor to remove him from the car. The deceased then returned to the smoking-car, and upon being soon after approached and admonished by the conductor to keep his seat and be quiet, he drew his knife, and threatened to kill him; and after the conductor returned to the ladies' car, the deceased again tried to enter it, but being unable to do so because the door had been locked to keep him out, he, on his way back to the smoking-car, pulled the bell-rope the number of times required to stop the train, and it was, in obedience to his signal, stopped by the engineer. The conductor then went into the smoking.car, and telling the deceased, who, though he had just taken his seat, pretended to be asleep, that he would not permit any one to pull the bell-rope, and paying back his fare, with the aid of the brakeman put him off the train, and left him. The place where it was done is about four miles from Lebanon, two from the nearest station south, about one hundred and fifty yards from a private crossing of the railroad north, and two hundred from the nearest farm-house. Early the next morning the mutilated body of the deceased was found about twenty-five yards north of the private crossing mentioned, and his hat, a sack and bucket, which he had the night before, were near the place he was put off the train, bis hat being nearest the body. Three trains passed the place where his body was, after he was expelled from the passenger train, two going north, one of which passed within about one hour and a half, the other later in night, and the third going south about daylight. It is plain he was not killed by being struck or run over by the passenger train from which he was ejected; for not only was his body found near two hundred yards north of where he was left by it, but a little more than twenty-five yards north of the place on the track where there was the first appearance of blood, showing conclusively the train by which he was killed was going north.
Assuming, as the evidence seems to warrant, that he was killed by one of the north-bound trains, though by which one of the two does not appear, the first inquiry is, whether any legal liability has been fixed upon appellant on account of negligence of those in charge of it; and as there is no evidence showing at what time in the night, or why, he went upon the track in front of a passing train, if he did so voluntarily, nor whether he was in such position at the time of being struck as to make it the duty of those in charge to stop the train, or as to enable them, by the exercise of proper diligence, to discover him in time to prevent a collision, or at all, and conBequently none whatever of any negligence or fault on their part, that question must be answered in the negative.
It thus results that whatever cause of action there may be in favor of appellee arises entirely from the conduct of the conductor of the passenger train, and the liability of appellant therefor, if liable at all, is not dependent upon nor increased by the fact that the train by which he was subsequently killed was owned and operated by the same company; for if the act of the conductor was not itself wrongful, it could not be made so by referring it to or connecting it with the independent act of other employees, to whom no wrong can be attributed.
Counsel argue, in effect, that when an intoxicated person offers to go upon a railroad train as passenger, the alternativo js presented to the company either to refuse permission, or else, having received him and accepted his fare, to answer in damages for whatever calamity to him may follow bis suhe