
    Case 87 — ACTION FOR PERSONAL INJURY
    November 15.
    Jenkins v. Louisville & Nashville R. R. Co.
    APPEAL FROM JEFFERSON CIRCUIT COURT, LAW AND EQUITY DIVISION.
    Negligence — Falling of Partition in Sleeping Car — Evidence'— Peremptory Instruction. — Upon the trial of an action against a railway company and a sleeping car company for injuries alleged to have been caused to a passenger by the falling of a partition in a sleeping car upon his head, evidence of the falling of the partition, the cause not being apparent, with resulting damage is sufficient to entitle the plaintiff to have the case submitted to the jury.
    O’NEAL & PRYOR and W. B. DIXON for appellant. (KOJIN, BAIRD & SPINDLE of counsel.)
    The plaintiff was entitled to a submission of his case to the jury upon proof that the partition between the berths fell and struck him without any fault on his part upon the maxim, res ipsa loquitur. Ray Negligence of Imposed Duties of Passenger Carriers, 691, 694, 698; Railroad Co. v. Walrath, 38 0. St., 461; White v. The Boston, &c., R. R. Co., 144 Mass., 404; Smith, v. British, &c., Packet Co., 16 Jones & S., 87; Same case, 86 N. Y., 408; Mullen v. St. John, 57 N. Y., 567; Seybolt, Admx., v. N. Y., &c., R. R. Co., 95 N. Y., 562; Lowrey v. Manhattan Ry. Co., 99 N. Y., 158; Houser v. Cumberland, &c., R. R. Co., 30 Atl. Rep., 906 (Md.); Memphis & O. River Packet Co. v. McCool, 83 Ind., 392; Martin v. Dufalla, 50 111. App., 371; Yerkes v. Keokuk Packet Co., 7 Mo. App., 268; Cummins v. Nat., &c., Co., 60 Wis., 603; Kutz v. Or. N. Co., 20 Ore., 13; Penn. Co. v. Roy, 102 U. S., 451; Thompson on Negligence, vol. 2, ¡p. 1220; Louisville & Portland R. R. Co. v. Smith, 2 Duv., 556; Central Pass. Ry. Co. v. Kuhn, 86 Ky., 578; Hammill v. L. & N. R. R. Co., 93 Ky., 344; Couadeau v. American Accident Co., 95 Ky., 280; Louisville Gas Co. v. Gutenkuntz, 82 Ky., 432.
    
      ZACH' PHELPS for appellees. (LYTTLETON COOKE for the L. & N. R. R. Co., and PHELPS & THUM for the Pullman Palace Car Co., of counsel.)
    1. It is not true as a matter of law that in every case the happening of an accident is sufficient to raise a presumption of negligence. This is limited and only applied to those cases where the subject matter is peculiarly within the knowledge and peculiarly subject to the inspection and control of the defendants.
    2. Even if it is true that a presumption of negligence arises, it is the duty of the trial court, where that presumption is over-weighed and taken away by the plain, undisputed, and unequivocal evidence of the defendant, to interfere and protect the defendant, and it has the power to give a peremptory instruction at the close of the evidence.
    3. The sleeping car company is not a common carrier and the rule as to a railroad company can not be applied to it.
    Citations: Hughes v. Cincinnati, &c., R. R. Co., 91 Ky., 526, et seq.; Kentucky Central Ry. Co. v. Gerreiss, 14 Ky. Law Rep., 397; Mitchell v. Western Atl. R. R. Co., 30 Ga., 25; Herstine v. Lehigh Valley R. R. Co., 151 Pa. St. Rep., 244; McKinney v. Railroad Company, 124 Pa. State, 462; Parley v. Traction Co., 132 Pa. St., 58; Texas Pacific R. R. Co. v. Buchelew, 22d vol., S. W. R., 994; Yarnell v. Kansas City, &c., R. R. Co., 21 S. W. R., -; LeBarron v. East Boston Perry Co., 11 Allen Rep. (Mass.), 312; Carpue v. London R. R. Co., 5 Q. B., 747; Stokes v. Saltonstal, 13 Pet., 181; Ware v. Gay, 11 Pick., 106; Dallem v. Handley, 2 Mar., 418; United Society, &c., v. Underwood, 11 Bush, 265; Chiles v. Booth, 3 Dana, 566; Nance’s Admr. v. N'. N. & M. V. .Co., 13 Ky. Law Rep., 554; Wadlington v. Same, 14 Ky. Law Rep., 559.
    W. B. DIXON, for appellant, in response to brief for appellees.
    It is not contended by the appellant that the mere happening of the accident will raise a presumption of negligence. There must be more than this. What the appellant contends is, that where an accident does happen, and when it is shown that that ■accident consists in a part of the car falling, which, under proper conditions, ought not to and could not fail, and when it is shown that the appellant was injured thereby without fault on his part, then the presumption of negligence arises which can only be rebutted by showing how the accident occurred.
    LYTTLETON COOKE in a supplemental bbiee eob appellees.
    The physical facts demonstrated that appellant was not and could not have been injured as alleged and stated by him, and therefore the action of the trial court in directing a verdict for the appellees was proper. Elliott on Railroads, vol. 4, secs. 1703; 1702; Hunter v. N. Y., &e.,- R. R. Co., 116 N. Y., 615; same case, 23 N. E. R., 9; San Antonio & A. P. R. R. Co., v. Choate, 25 S. W. R., 180; Johns v. N. W. Mutual Relief Asso., 90 Wis., 332; s', c. 63 N. W. R., 276.
   JUDGE BURNAM

delivered the opinion oe the court.

Appellant brought this suit against the Louisville & Nashville Railroad Company and the Pullman Palace Car-Company to recover damages for an injury alleged to have been sustained while he was a passenger on one of the railroad company's trains, and occupying a berth in the sleeping car of the Pullman Company. He had paid to the railroad company his fare from Nashville to Louisville, and had also paid for and been assigned a berth in a car of the Pullman Company; and he alleges that, while occupying his seat therein and leaning forward engaged in. reading, he received a violent blow on the back of his head, caused by the falling of the headboard, or partition plank, which separated the berth in which he was sitting from that in front of him, and that by reason of this blow his health and sight have become permanently impaired, and that he has been compelled to incur large expense in trying to be cured from the effects of the injury, which he alleges was caused by the negligence and wrongful acts of the appellees. The railroad company in its answer denied every affirmative fact alleged in the petition; and 'further alleged that, if appellant received the injury complained of, it was wholly in consequence of his own negligence and misconduct. The Pullman Company filed its separate answer, in which it denied all the affirmative averments of the petition; and further averred that; at the time of the alleged injury, it had furnished a suitable and proper car, which was provided with all the necessary and usual safeguards for the protection and comfort of its passengers; that the partition planks, or headboards, provided in. the car, were adjusted and put in place after the usual and customary manner, and were provided with all the safeguards and protections known to the most skillful manufacturers of such cars and of such partition planks, or headboards; that it had also provided a competent and skillful employe to put the headboards, or partition planks, in place, and that at the time the accident is alleged to have occurred he had placed in its place, in the customary and proper manner, the headboard which is claimed to have fallen on appellant; and that, if any injuries were received by the appellant from the falling of this headboard, they were received without negligence on it's part. The pleadings being made up, and the case tried, at the conclusion of the testimony the circuit judge gave to the jury a peremptory instruction to find for the defendants, and judgment was entered accordingly, and ,we are asked on this appeal to reverse that judgment.

Upon the trial appellant testified that while he was sitting in the seat of the berth that had been assigned to him, leaning forward, reading, the partition plank, or headboard, which divided the berth he occupied from the one in front of him, suddenly, and without previous warning, Sell and struck him on the head; that the blow knocked ■him down between the seats the berth, and that the porter and the occupant of the berth directly opposite took the headboard off of‘him and replaced it; that as the immediate result of this blow on the head he experienced, considerable pain and sickness of the stomach,, which resulted in vomiting and quite a severe contusion; that when he arrived in Louisville on the next day he consulted with Dr. Skinner in regard to his injury, who examined him, and prescribed for him, after seeing him twice; that shortly afterwards he left Louisville, and went to Henderson, Ky., where he consulted Dr. Dixon, who examined him and treated him for the same injury; that as a result of the injury he has been compelled to abandon his profession as a dentist, and has experienced great suffering and' permanent injury to his health. H. M. Tindel testifies that he hád been sitting talking with appellant in his berth some time; that between 9 and 10 o’clock he retired to his own berth, which was opposite that of appellant; that he left appellant sitting up reading a book, and that a short time after he had retired he heard the noise of something falling; that he looked across, and saw that the headboard between the berth occupied by appellant ‘ and the. one immediately in front had fallen down, and'was lying upon the back and head of appellant, who had been knocked down between the seats, on his hands and knees; that he called the porter, who came back from the front end of the car, and placed the board in its proper position; that he observed that the appellant was looking very pale, and that he complained of being sick at the stomach during the night. Dr. Skinner testifies that he saw appellant the next day in Louisville, and that his attention was called to a tender spot and a little swelling on the back of his head, and that he prescribed for him; that about 10 days afterward he-saw appellant again, and that he looked sick and emaciated, and seemed quite feeble,.and that he thought the injuries resulting from the blow had developed into a form of meningitis, permanently impairing appellant’s health. And substantially the same testimony Is given by Dr. Dixon, who treated him after his return to Henderson.

It is insisted for appellees that it is shown by the uncontradicted testimony of their carpenter and the porter of the sleeping car that these headboards were so constructed and were so fitted in place (there being grooves in the board which fit upon projecting beads on the stationary part of the car) as to make it a physical impossibility for it to fall out of place, after it had been once properly put in and fastened, and that the uncontradicted testimony of the porter is to the effect that the board was not only placed properly, but wTas securely fastened; and it is further contended that, even if this board had fallen from its place, as claimed, it was a physical impossibility fo'r it to have struck appellant as testified to by him; and that these physical facts present in the case are sufficient to overcome the evidence of the witnesses who testified for the appellant, and to justify the peremptory instruction given by the court.

Even if it be conceded, from the testimony, that the mechanical contrivances for keeping this partition board in its place were the very best known, and were sufficient for that purpose, still the question remains, was it actually so placed and secured by the catches? The only witness who testifies on this point is the porter, and he admits that the board had in some way gotten out of its place, and no explanation is given by the testimony as to how this occurred. It is suggested that it was the work of appellant, and was a part of a scheme on his part to defraud appellee and the accident insurance company., but, at best, this theory is based only on conjecture» There is no testimony that appellee unfastened these locks, or in any way’tampered with the headboard; and, when this is coupled with the testimony that the board MS in some way get out of its proper place, to appellant’s injury, a presumption arises, in the absence of other satisfactory proof, of negligence on the part of appellees, for which they are liable. See Louisville & Portland R. R. Co. v. Smith, 2 Duv. 556; Cooley on Torts, p. 663; Ray on Imposed Duties of Passenger Carriers, p. 681; Railroad Co. v. Walrath, 38 Ohio St. 461 [43 Am. R., 433], and White v. Boston Railway, Co., 144 Mass. 404 (11 N. E. 552). The rule has often been announced by this court that it is the province of the jury to determine the weight of evidence and the credibility of witnesses, .and that where the evidence conduces in any degree to ■establish a right of recovery it is error to give a peremptory instruction to find for defendant. See L. & N. R. R. Co. v. Howard’s Adm’r, 82 Ky. 212, and Hammill v. L. & N. R. R. Co., 93 Ky. 344, (20 S. W. 263). The testimony in this record is not of that conclusive and undisputed character where but one reasonable inference can be •drawn from it, and the application to this ease of the rules of law laid down for the guidance of courts in cases of conflicting testimony authorized its submission to the jury. For the reasons indicated the judgment is.reversed, with ■directions to grant the appellant a new trial, and for proceedings consistent with this opinion.  