29 Ky.L.Rptr. 1165
Court of Appeals of Kentucky.
Oct. 30, 1906.
ACTION: Reversed and remanded.

Appeal from Circuit Court, Knox County.
"Not to be officially reported."
Action by Elijah Williamson against the Louisville & Nashville Railroad Company.
From a judgment for plaintiff, defendant appeals.

Appellee was a passenger upon a train of appellant from Flat Creek, Ky., to Barboursville, Ky., having purchased his ticket at the former station entitling him to passage. He delivered his ticket to the conductor in charge of the train, and thereafter was again asked for his ticket by the conductor, and in a controversy growing out of this second demand for his ticket he charged that he was unlawfully, willfully, and maliciously seized, searched, assaulted, beat, and bruised, and disturbed and intimidated by the conductor and other employes of the train. Appellant admitted that the conductor and other employes did seize and search appellee, but alleged that at the time they did so appellee was using loud, boisterous, profane, and indecent language towards the conductor in the presence of the female and other passengers, and when the conductor requested him to desist from such conduct he made such demonstration as induced the conductor and other employes of the train to believe that he was about to draw a pistol and shoot the conductor, and to prevent this, and for no other purpose, they seized and searched him, but in so doing used no more force than was reasonably necessary for that purpose. Appellant denied that its employes acted with malice, or that they used any abusive or insulting language towards appellee. The affirmative matter in the answer was traversed of record. The case was tried before a jury, who returned a verdict for $2,500 for appellee, and from that judgment predicated upon this verdict this appeal is taken.

Three grounds are relied upon for reversal, which will be noticed: (1) The exclusion of competent testimony. (2) The admission of incompetent testimony. (3) The damages are excessive. The proof shows that the ladies' coach, on the day upon which this difficulty ocurred, was crowded, all the seats being taken, and some of the passengers were standing in the aisle and sitting on the arms of the seats. The conductor passed through and took up appellee's ticket, and later, the train having passed Artemus, he passed through the coach, and again called upon appellee for his ticket. Appellee told him that he had given him his ticket. The conductor told him that he got on at Artemus, or that "you gave me a ticket to Artemus." These are the only words which passengers who testified heard pass between appellee and the conductor. Appellee testified that the conductor cursed him, and the conductor testified that he was cursed by appellee. At this juncture the conductor charges that appellee made a motion as if to draw a pistol, and that he said to him, "Young man, you have got a pistol; don't do that." And a claim agent, L. F. Debusk, who was on the train, testified that at this time he heard some one say, "Look out, he is going to shoot." Immediately upon charging appellee with having a pistol, the conductor seized him, and Debusk searched him and found no pistol. Thereupon the conductor released his hold upon appellee, and either struck him with his fist, or slapped him with his hand in which he held his ticket puncher, and appellee claims that the blow injured his face to such an extent that it pained him for a week or more. During the cross-examination of L. F. Debusk he was asked to describe the demonstration that appellee made, as though he was going to draw a weapon, and the plaintiff objected, and the court sustained the objection, and the defendant excepted; but, as defendant made no avowal as to what the answer would have been, it cannot complain of this ruling of the court, although the testimony may have been very material to appellant. In the absence of any avowal, the ruling of the trial court in refusing to permit the witness to answer this question furnishes appellant no grounds for reversal, even though the testimony was material and vitally necessary to its defense.

During the course of the examination appellee was asked this question: "I will ask you if you saw Mr. Worsham, the conductor, and had a conversation with him at any time after this?" The defendant objected, and the court overruled the objection, and the defendant excepted. The question was again repeated in this form: "I will ask you to state whether or not Mr. Worsham said to you that he was drinking on that day, and to just let it go, and not do anything about it, or something like that?" Appellee answered: "It was about three weeks, I suppose, to the best of my recollection. It seems as though I came to Barboursville. I was standing out between the coaches. I had given him my ticket. Just as I handed him my ticket he said, 'Ain't you the young fellow I had a racket with some time ago,' and I said, 'Yes; I suppose I am the one.' He said, 'Just let that go; I was drinking that day.' I said, 'I do not want to have anything to do with you at all;' and he went on, and that was all that was said." This conversation, occurring as it did about three weeks after the difficulty complained of, cannot be considered a part of the res gestae, and, not being such, was wholly incompetent and prejudicial to appellant. It is a well-settled rule of law that the master is not chargeable with the declarations of its servants, unless they are made contemporaneously with the event complained of, or so soon thereafter as to amount in law to a part of the thing done. In this case, the testimony was introduced as substantive evidence, and the jury no doubt regarded it as an acknowledgment on the part of the conductor that he was in the wrong. It doubtless influenced the jury in no small degree in making their verdict. This evidence might have been admitted for the purpose of contradicting the witness, after laying the grounds therefor, but, if admitted, the jury should have been told that it was admitted for this purpose only.

It may be urged by appellee that appellant should have objected again when the question was renewed, and should also have objected to the answer. This, however, is not the rule. When the question is asked and defendant objects, and the court overrules the objection and defendant excepts, and then the witness answers, the defendant (appellant) has fully protected his rights. The court having passed upon the question, and overruled defendant's objection, all that remained for defendant to do to fully protect its rights was to save an exception, which he did. The introduction of this testimony was, as we have said, clearly incompetent, and highly prejudicial to the rights of appellant.

We are of opinion that the verdict in this case was excessive, so much so, that we are constrained to believe that the jury must have been influenced to a large degree in arriving at their verdict by the admission of this incompetent testimony.

For the reasons given, the judgment is reversed, and remanded for further proceedings consistent with this opinion.

Ky.App. 1906.
96 S.W. 1130, 29 Ky.L.Rptr. 1165


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