| 33 Ky.L.Rptr. 721, 26 L.R.A.N.S. 263 |
|---|
| Court of Appeals of Kentucky. |
| LOUISVILLE & N. R. CO. v. SCALF. |
| June 9, 1908. |
| ACTION: Reversed. |
Appeal from Circuit Court, Knox County. "Not to be officially reported." Action by Lee Scalf against the Louisville & Nashville Railroad Company. Judgment for plaintiff, and defendant appeals. CLAY, C. Appellee, Lee Scalf, went with the Barbourville State Guards to the inauguration of Governor Beckham in December, 1900. Complaining that the coach in which he went to and returned from Frankfort was not properly heated or lighted, and was not furnished with sufficient water for drinking purposes, that the stoves and lamps smoked, and that the car was permitted to become in a noisome and filthy condition, and that by reason thereof, he experienced great physical and mental suffering and caught severe cold, he instituted this action for damages against the appellant, Louisville & Nashville Railroad Company. He recovered a verdict for $500, and the railroad company appeals. It appears from the record that appellee never enlisted in the State Guards by taking the obligation required by law. The captain of the company simply requested him to accompany the guards for the purpose of filling out the quota of the company. He thereupon volunteered, and did go with the company. According to appellee's contention, the bad conditions prevailing in the car were due to the negligence of the employes of the appellant company, while the latter insists that those conditions were due entirely to the acts of appellee and his companions in raising the windows of the car, in attempting to put coal in the fires, in punching the fires with their bayonets, and in scattering lunches over and vomiting on the floor of the car. Appellant asks a reversal on the ground of the admission of incompetent testimony, and also because of error in refusing and giving instructions. It appears that the trial court permitted several witnesses to testify to the fact that the members of the guard complained of the cold and the other conditions of the car, and expressed these complaints to each other. As these complaints were not made to the employes of the railroad, they were manifestly incompetent, and all such evidence should have been excluded by the court. Appellant asked the following instruction: "If you shall believe from the evidence that the plaintiff, Lee Scalf, was not a member of the military company on the trip to, or return from, Frankfort on the occasion mentioned in the evidence, but that he voluntarily undertook to and did make said trips, and that he could without subjecting himself to any military discipline or penalty have left the coach which was occupied by said company on said trip after discovering that said coach was dirty or filthy, or gave out offensive odors, or was insufficiently heated, or the lamps gave insufficient light, or emitted foul or offensive odors, or the stoves in said coach gave out smoke, to the discomfort of plaintiff, if any such conditions existed, and could have taken passage on said trips in another coach free from such conditions and failed to do so, you should find for the defendant." We think the court erred in failing to give this, or a similar instruction. Indeed, as there was no proof that appellee was a member of the military company, he could have left the car without subjecting himself to any military discipline or penalty. The statutes do not provide a punishment, except for enlisted men. No power is given to discipline those who go as mere volunteers and who have not enlisted in the service by taking the obligation required by law. Upon the next trial, the court should give the following instruction: "The court instructs you that the plaintiff, Lee Scalf, was not a member of the military company on the trip to and from Frankfort on the occasion mentioned in the evidence, and that he could, without subjecting himself to any military discipline or penalty, have left the coach which was occupied by him on said trips. And if you believe from the evidence that said coach was dirty or filthy, or gave out offensive odors, or was not sufficiently heated, or the lamps gave insufficient light or emitted foul and offensive odors, or that the stoves in said coaches gave out smoke, to the discomfort of the plaintiff, if any such conditions existed, and that the plaintiff on said trip could have taken passage in another coach free from such conditions, and failed to do so, you should find for the defendant." Appellee complains of the fact that he contracted a severe cold by reason of the cars being insufficiently heated. It appears, however, that after his arrival in Frankfort he marched and stood around for several hours in the cold without any overcoat on. It was therefore impossible to tell whether the cold he contracted resulted from the insufficient heat of the car or from the exposure to the severe weather then prevailing at Frankfort. Upon the next trial, unless there be some evidence that the cold complained of was the proximate result of the condition of the car, all evidence of the cold should be excluded, and the court should omit from its instructions the right to recover on that ground. For the reasons given, the judgment is reversed and cause remanded for a new trial consistent with this opinion. Ky.App. 1908. LOUISVILLE & N. R. CO. v. SCALF. 110 S.W. 862, 33 Ky.L.Rptr. 721, 26 L.R.A.N.S. 263 |
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