October 5, 2012

L. & N. R. Co. v. Fish, Rockcastle, 1910

LOUISVILLE & N. R. CO. v. FISH.

COURT OF APPEALS OF KENTUCKY

127 S.W. 519; 1910 Ky. LEXIS 660

April 27, 1910, Decided

PRIOR HISTORY:  [**1] 

Appeal from Circuit Court, Rockcastle County.

Action by W. H. Fish against the Louisville & Nashville Railroad Company. From a judgment for plaintiff, defendant appeals.

DISPOSITION: Reversed and remanded.

COUNSEL: J. W. Brown, John T. Shelby, and Benjamin D. Warfield, for appellant.

C. C. Williams and S. D. Lewis, for appellee.

JUDGES: BARKER, C. J.

OPINION BY: BARKER

OPINION

 [*520]  BARKER, C. J. The appellee, W. H. Fish (plaintiff below), purchased from appellant (defendant below) a railroad ticket from Wildie, Ky., to Richmond, Ky., and return. The two tickets as delivered to appellee were on one piece of pasteboard. After plaintiff boarded the train at Wildie, he handed the conductor the round-trip ticket. This officer tore the tickets apart and handed the appellee what he doubtless thought was that part which entitled him to return on board the train from Richmond to Wildie; but, in fact, by mistake the conductor kept that part of the ticket and returned to appellee the part which evidenced his right to ride from Wildie to Richmond. The appellee was transported from Wildie to Richmond, where he attended to the business for which he made the trip, and the next day undertook to return from Richmond to Wildie on one of appellant's passenger trains. While en route his ticket was demanded by the conductor, and appellee handed him that part of the ticket which had been returned to him by the conductor of the other train the day before. The second officer, observing that the ticket entitled the bearer to a ride from Wildie to Richmond and not from Richmond to Wildie, declined to accept it or to permit appellee to ride on the train to his destination, unless he paid his fare. Appellee was without money and had no acquaintances or friends upon the train from whom he could borrow, and, in pursuance of the demand of the conductor, got off the train before he arrived at his destination, and walked 11 miles to his destination. To recover damages for the wrong thus done him, he instituted this action and recovered damages in the sum of $500. Of the judgment based upon this verdict the appellant now complains.

The appellant was not entitled to a peremptory instruction at the conclusion of the evidence for plaintiff. The latter purchased a round-trip ticket and was entitled to ride thereon from Wildie to Richmond and from Richmond to Wildie. He handed the first conductor the whole ticket, as it was his duty to do, and that officer, instead of returning to appellee the correct part of the ticket, by mistake returned to him that part which he should have kept, and kept that part which he should have returned. This negligent act was the whole cause of the trouble and consequent injury to appellee. We do not think appellee was negligent in failing to observe the mistake of the officer in returning to him the wrong part of the ticket. He had a right to rely upon the accuracy and diligence of the officer and to assume that the right ticket had been returned to him. He did not observe the mistake, and was guilty of no contributory negligence by his failure to observe it. The very question we have here was involved in the case of Southern Railway in Kentucky v. Hawkins, 121 Ky. 415, 89 S. W. 258, 28 Ky. Law Rep. 364, and it was there held that a passenger who was put off of a train by the conductor because he did not have a proper ticket could recover from the railroad, because his failure to have a proper ticket was the result of the negligence of the ticket agent, who by mistake had failed to stamp correctly the ticket he sold to the passenger. We do not feel it necessary to analyze the opinion delivered in that case any further. It is sufficient to say that it settles adversely to appellant every question involved on this appeal, except the amount of the damages awarded by the jury in their verdict.

The instructions of the court in the case at bar were approved in Lexington & Eastern R. R. Co. v. Lyons, 104 Ky. 23, 46 S. W. 209, 20 Ky. Law Rep. 516.

We think, however, the verdict awarding appellee $500 damages was excessive. It is not pretended that the conductor did any more than his duty in requiring the plaintiff to pay his fare or leave the train. He was not abusive, but, on the contrary, was polite and kind to appellee.

It is true, appellee was forced to walk 11 miles, and that he was suffering with some stomach trouble, but it was in the daytime, and there was no intimation that either the weather or the roads were bad, and, while appellee says it made him tired, we cannot but feel that $500 was very much more than he was entitled to recover under the circumstances and for this reason alone the judgment is reversed for further proceedings consistent with this opinion.

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