The following summary, taken from The Southwestern Reporter [Volume 67, April 7-May 19, 1902, pages 25-7], describes the Court of Appeals judgment in the case of Mary Richmond vs. the Louisville and Nashville Railroad in the case of the train wreck at Gap in Knob on 23 Dec 1899.
LOUISVILLE & N. R. CO. v. RICHMOND.
[Reported by Edward W. Hines. Esq., of the Frankfort bar, and formerly state reporter.]
(Court of Appeals of Kentucky. March 18, 1902.)
CARRIERS - COLLISION - INJURY TO PASSENGER - NATURE OF INJURY - ALLEGATION-EVIDENCE - CONTINUANCE - SURPRISE.
1. Where a freight train running at least 25 or 30 miles an hour, and making no stops, left a station from 4 to 11 minutes behind a heavy passenger train having a schedule of 23 miles an hour, and which was to make many stops, there was gross negligence, rendering the railroad company liable for injury to a passenger by a collision; the rules requiring the freight train to keep 10 minutes behind the passenger train.
2. As plaintiff alleged that she "was greatly injured in her person, and the muscles of her shoulder were greatly torn and lacerated, and she was greatly bruised in her person, especially in her arms and side," and defendant, instead of making a motion to require plaintiff to make her petition more specific, filed an answer denying that plaintiff was injured as alleged, or at all, evidence of injury to plaintiff's spinal cord and to her eyes was admissible.
3. As defendant some time before the trial filed its affidavit stating that plaintiff claimed to be injured "in her back," and asked for a physical examination of her person, which was granted, evidence of injury to her spinal cord and of injury to her eyes, as a result thereof, did not entitle defendant to a continuance on the ground of surprise.
Appeal from circuit court, Bullitt county.
"Not to be officially reported."
Action by Mary Richmond against the Louisville & Nashville Railroad Company to recover damages for personal injuries. Judgment for plaintiff, and defendant appeals. Affirmed.
Fairlelgh, Straus & Eagles and Edward W. Hines, for appellant. Bennett H. Young and Chas. Carroll, for appellee.
WHITE, J. Appellee was a passenger on appellant's train, and was injured in a rear-end collision, caused by a freight train running into the passenger train at the station called "Gap-in-Knob" on appellant's road, and she sues to recover damages for the injury sustained. The petition avers gross negligence in appellant's servants in causing the rear-end collision, and seeks to recover $3,000 in damages for injury to appellee's person. The allegation as to appellee's injury is: "And by said collision plaintiff was greatly injured in her person, and the muscles of her shoulder were greatly torn and lacerated, and she was greatly bruised in her person, especially in her arms and side." Without a motion to make more specific the injuries complained of, and for which a recovery was sought appellant filed its answer, admitting that appellee was a passenger, but denied that the collision was caused by the negligence of its agent either gross or ordinary, and denied that appellee was injured as alleged or at all, or that she sustained any damage whatever. Upon the issues thus tendered, a trial was had before a jury, which resulted in a verdict and judgment for appellee for $1,500, to reverse which this appeal is prosecuted.
The reasons urged for a reversal of the judgment, and the same that are presented in the motion for new trial, are: (1) The verdict is not sustained by the evidence; (2) alleged error of the court in permitting proof by appellee of injury to her spinal cord and eyes, over objection of appellant.
The court told the jury at the time the testimony was introduced that they could not consider any injury to appellee's eyes as an item on which to fix damages, but might consider that fact only to show an injury to the spine. When the case was finally submitted to the jury, the court repeated its charge to the jury by a written instruction eliminating any compensation for injury to appellee's eyes. Although this was done, appellant still insists that the alleged error in admitting the testimony was not corrected. When this testimony was admitted, appellant asked for a continuance on the ground of surprise as to the claim for damages. This the court overruled, and we are asked to review that action and reverse because appellant was not granted a continuance. It is admitted by the answer that appellee was a passenger on one of appellant's passenger trains, and the fact of a rear-end collision is also admitted. The cause of the collision is clearly shown to be that a freight train overtook and ran into the passenger train as the latter was leaving the station Gap-in-Knob. The two trains had left South Louisville station from 4 to 11 minutes apart, and the freight had overtaken the passenger, instead of keeping 10 minutes behind it, as the rules required. It seems that the passenger train consisted of engine, baggage car, and three coaches, and, heavily loaded, had a schedule of 23 miles an hour, and was to stop at nine stations. The freight was a double header, that made no stops, and, as the proof shows, ran at least 25 or 30 miles an hour, carrying 49 cars. By leaving South Louisville from 4 to 11 minutes behind the passenger, and running much faster and making no stops, it is apparent that the freight would overtake the passenger. In our opinion, these facts shown presented a clear case of gross negligence in appellant's servants, and, as to appellee, it is immaterial which crew of trainmen was to blame for the collision. The only question, therefore, that there was any dispute between the witnesses, was as to the injuries sustained by appellee. The proof of appellant tended to show there was no injury, - at most, a slight jar when the collision came. That of appellee tended to show she was painfully injured in her shoulder and arm, and also in her spinal cord, which latter injury had permanently injured her eyesight. Under the proof, we are of opinion the verdict was justified and sustained. We will not reverse the judgment on account of a lack of evidence.
It is earnestly insisted that proof as to injury to appellee's spinal cord and eyes was inadmissible under the pleading. True, the petition is not as specific as to the injuries received as it might have been; but, if appellant had objection to the general statement, it should have asked that appellee make her general statement more specific. This was not done, but appellant contented itself with a denial of this general statement of injury to appellee's person, and then further denied she was injured at all. While the denial would not enlarge the allegation of the petition, neither will the general terms of the petition be restricted to the italicized or special injury mentioned, when this is stated as an addition to the general injury. When appellant failed to ask for a specification of the injury, and presented the issue as to any injury to the person of appellee, the case was made up on this general plea of injury, and appellee had a right to prove any injury to her person caused by the collision. The spinal cord and eyes were within the allegation, as much as any other part of her person. The particularizing and specifying the injury to her arms and shoulder did not destroy the general allegation of injury to her person. That the injury to the eyes was eliminated from the consideration of the jury in estimating damages was favorable to appellant, and of this it will not be heard to complain. It cannot be said that appellant was taken by surprise in the proof and claim of injury to appellee's eyes and spinal cord. Some time before the trial, appellant filed its affidavit stating that appellee claimed to be injured in her back, and asked for a physical examination of her person, which the court granted. The spinal cord might be reasonably expected to be injured, on complaint of injury to the back. It is evident that the theory of the court in admitting proof of injury to the eyes, and then excluding that injury from the consideration of the jury in estimating damages, was that it might be shown - reasoning from effect back to cause - that the spinal cord was injured, as was demonstrated by proof of the resultant defect to the eyes shown. There was not claimed a direct injury to the eyes, but this was a resultant injury from the injury to the spinal cord, located in the back, of which appellant's counsel had notice, as is shown by the affidavit filed some time before the trial. We are of opinion that there was no error prejudicial to the appellant in admission of testimony, nor was there error in refusing a continuance on the ground of surprise in its production. It would therefore follow that there was no error in refusing to give instruction "b" asked by appellant.
If the testimony of appellee and her physicians is true, as to the extent of her injuries, the verdict for $1,500 cannot be said to be excessive, or the result of passion or prejudice.
The instructions given seem to embrace the law of the case, and are not complained of by counsel.
We perceive no error in the judgment, and the same is affirmed, with damages.
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