warrant of that kind, where there was prop- lawful, and the detention unlawful and unerty which could have been taken for the authorized, and the proof conducing to show payment of the taxes, and, as a result of the that appellee Kohler delivered the appellant illegal arrest, that the officer was liable for at the city hall into the hands of other offithe damages suffered by Hall for his deten-cers and persons who displayed the firearms tion in prison, and the inconvenience and in a threatening way, and quizzed her in an suffering to which it subjected him, as being, annoying and offensive manner, if they did a direct consequence of the illegal act of the so, these things directly resulted from the officer in the service of the distress warrant, unlawful arrest and detention, to which she and proof of such inconvenience and suffer- had been subjected by the appellee. The exing was therefore competent. clusion of this testimony upon the last trial was very prejudicial to the substantial rights of the appellant, and for that reason the court below should have set aside the verdict and judgment in the last trial and granted her a new trial. It follows that the trial court was in error when it granted a new trial, after the first trial and judgment, on the ground that it had erroneously permitted the appellant to put in evidence the occurrences at the city hall, after appellee had taken her there and turned her over to others in the room, and was not present himself. In the case of Fenelon v. Butts, 53 Wis. 344, 10 N. W. 501, Butts, by means of some preliminary proceeding, which the court held to be unauthorized and illegal, accomplished the arrest and imprisonment of Fenelon, and it was held that proof of the condition and circumstances of the Fenelon family, and the filthy condition of the jail in which she was confined by Butts and others, were proper elements of damages to be recovered by her; the arrest in this case having been held to be wrongful. [4] The counsel for appellees, however, insist, that they were entitled to a new trial, because of the misconduct of appellant's attorney, by prejudicial statements made by The cases of Jacques v. Parks et al., 96 Me. 268, 52 Atl. 763, Scott v. Flowers, 60 Neb. 680, 84 N. W. 81, Abrahams v. Cooper, 81 Pa. 232, Drumm v. Cessnum, 61 Kan. 472, 59 Pac. 1078, and Kindred v. Stitt, 51 Ill. 401, are all in accordance with the authori-him to the jury in his closing argument, and ties above cited. In Miller v. Fano, 134 Cal. 109, 66 Pac. 185, a police officer having a warrant of arrest for one man, by a mistake as to his identity arrested another and delivered him to a constable from Los Angeles, who took him to that place and put him in jail. The court held, upon a suit for damages for the false arrest and imprisonment against the officer first making the arrest, that the imprisonment at Los Angeles and the inconveniences of it and the condition of the prison were proper elements of damages to be considered by the jury. The court used the following language: * * * because the court misinstructed the jury as to the law of the case, and refused to peremptorily instruct the jury to find for appellees at the conclusion of appellant's testimony, and at the conclusion of all of the testimony, and because the verdict was excessive. As to the instructions, it does not appear that appellee offered any instructions in writing which the court was asked to give. The court did not owe the duty to give such an instruction, unless it was offered in writing. Traders' Bank v. Henry, 105 Ky. 707, 49 S. W. 536, 20 Ky. Law Rep. 1506; Webster v. Green, 60 S. W. 714, 22 Ky. Law Rep. 1456. [5] Aside from this reason, however, the "He placed plaintiff in the custody of the Los Angeles officials, and all the facts and evidence was amply sufficient of the forcircumstances connected with his unlawful im- cible arrest and detention of appellant to reprisonment were admissible in evidence." Suth-quire the court to submit the issue to the erland on Damages (2d Ed.) § 1257. In the case of S. A. & A. P. Ry. Co. v. Griffin, 20 Tex. Civ. App. 91, 48 S. W. 542, the court held that in an action for damages for imprisonment on a false charge the plaintiff may give in evidence the facts as to his treatment while in confinement, at the hands of the public authorities, as bearing on the amount of damages. Ocean S. S. Co. v. Williams, 69 Ga. 251, Kreger v. Osborn, 7 Blackf. (Ind.) 74, and Hopkins v. Garthwaite, 28 La. Ann. 325, are not applicable to the question in issue. In these cases, supra, the court held that the arrest was legal, and for that reason the party causing it was not liable for aftertreatment, where they did not prompt the aftertreatment. In the case at bar, the arrest being un jury. The instructions given by the court to the jury fairly present the issues, and were not in any wise prejudicial to appellees. [6] The alleged misconduct of appellant's attorney consisted in his reference, in his argument, to the fact that the attorney for the appellees was an assistant city attorney. This statement was objected to by appellees, at the time, not because it was not true, but, because there was no evidence of it in the record. The court did not pass upon the objection, but the attorney making the statement, at the time of the objection, conceded the fact that it was not in the record. It does not appear how this occurrence could in any wise prejudice the appellees. do not see how the fact of a litigant's attorney, being an assistant attorney for the We founded upon an error as to the law. In the case of Perkins v. Ogilvie, 148 Ky. 309, 146 S. W. 735, this court held that: "While the trial court is vested with a broad discretion in granting a new trial, yet if it granted a new trial solely on the ground of an error of law, which in fact was not an error, and the other grounds relied upon are not sufficient to justify its action, it is error, under such circumstances, to grant a new trial.” city, could in any wise inflame or prejudice | assigned by the court for its action was the jury against the cause of the litigant. [7, 8] The other language alleged to have been used by appellant's attorney, and claimed to have been prejudicial, was not objected to by appellees, and notice of it appears for the first time in the motion for a new trial. No mention is made in the bill of exceptions, of any language prejudicial to appellees, as having been made use of by appellant's attorney, and for that reason it is not before us for consideration. For an attorney, in the presence of the court and jury, in the trial of a case, to depart from the record and attempt to bring into the trial statements of outside matters which have no connection with a proper determination of the issues and are not legitimate arguments upon an issue in the case, forgets the duty which as an attorney he owes to the court and the pure administration of justice, but we cannot consider such matters unless they are presented to us, in the way provided by law. When the party complaining has waived the matter himself by making no objection at the time, he cannot thereafter complain. The language complained of, under the circumstances, was not prejudicial. [9, 10] In an action for false arrest and imprisonment, the injury to the feelings and mental sufferings, arising from the mortification, shame, fear, and humiliation suffered by the arrested party from the circumstances of the arrest and detention, are proper elements for damages to be considered by the jury, as well as the physical inconveniences suffered. The rule applying in such cases is that the successful plaintiff is entitled to compensation for all the natural and probable consequences of the wrong, including injury to the feelings from humiliation, indignity, and disgrace, and injury to the person, and physical suffering, interruption of business, and loss of time from the restraint. 19 Cyc. 368. It has been said that no sum which is not, per se, evidence of prejudice or corruption is excessive for such indignities and suffering, where deprivation of liberty and injury to character result. Holburn v. Neal, 4 Dana, 120. The rule seems to be that in such cases the court will not disturb the verdict of a properly instructed jury, on account of the sum of damages allowed being excessive, unless it appears that there is a flagrant abuse of discretion by the jury, or that the jury was actuated by passion or prejudice. Taking into consideration, the youth, sex, the entire absence of a legal right to make the arrest, and the probable consequences of it, the sum of $750, the amount of the first verdict, is not excessive. The appeal by appellant from the judgment on the last trial brings before us for consideration the action of the trial court in granting a new trial. Both bills of exceptions are contained in the record. Being of the opinion that the trial court erred in granting the new trial, it follows that the appellant is entitled to have the judgment appealed from set aside, and the judgment rendered on the verdict at the first trial be reinstated. It is therefore ordered that the judgment appealed from be reversed, and this cause remanded to the court below for proceedings in conformity to this opinion. FIELDS v. LOUISVILLE & N. R. CO. (Court of Appeals of Kentucky. March 19, 1915.) 1. RAILROADS 358-USE OF TRACKS-OBLI- using the track as a matter of right or persons Trainmen must keep a lookout for persons at street crossings and at points on the track public generally are in the habit of using it as a in cities and populous communities where the right of way with the consent of the railroad company. [Ed. Note.-For other cases, see Railroads, Cent. Dig. §§ 988-1001, 1003-1005; Dec. Dig. 312.] Persons who are not in the employ of a railroad and have no business to transact with it venience go on a track or bridge, are trespassand who voluntarily and for their own ers, and the trainmen owe to them only the duty of exercising ordinary care for their safety after discovering their peril. [Ed. Note. For other cases, see Railroads, Cent. Dig. §§ 1238, 1239; Dec. Dig. 359.1 5. RAILROADS 355-PERSONS ON TRACK [11] There being no ground upon which the trial court was authorized to set aside the verdict of the jury and the judgment of the court upon the first trial, the order granting A railroad company erecting a bridge with a new trial was erroneous. The only ground a floor in it does not thereby invite the public LICENSEES-TRESPASSERS. to travel over it, and one with knowledge that | tion of its engine; that the engine was not trains frequently pass over the bridge not of under control of the person having charge sufficient width to accommodate a foot passen- of it; that no lights were displayed, nor any ger on it at the time a locomotive passes is a trespasser, where he enters the bridge for his own convenience. [Ed. Note. For other cases, see Railroads, 6. RAILROADS 394-INJURIES TO PERSON ON Affirmed. J. M. McDaniel, of Beattyville, for appellant. Wallace & Harriss, of Versailles, Benjamin D. Warfield, of Louisville, and G. W. Gourley and Sam Hurst, both of Beattyville, for appellee. lookout had, nor any signals given; that the engine was not properly manned and managed, and in fact the engineer and fireman had abandoned the engine, and it had been placed in charge of an inexperienced and incompetent night watchman or hostler, and all of those things were well known to the appellee, but unknown to the appellant; that appellant was injured at a place where the public was reasonably to be expected and anticipated; and that it was the duty of those in charge of the engine to give reasonable warning of its approach, by signals, and keep a reasonable lookout in the direction in which the engine and tender was moving; but that appellee's servants, by their [Ed. Note. For other cases, see Railroads, Cent. Dig. §§ 1331-1338; Dec. Dig. 394. gross negligence, wholly failed to do any of those things, and as the result of which the Appeal from Circuit Court, Lee County. appellant, while upon the bridge, was forced Action by Elijah C. Fields against the Lou- from it, and permanently injured, as above isville & Nashville Railroad Company. From stated. Appellant also alleged that, in ada judgment for defendant, plaintiff appeals.dition to the acts of negligence above stated, the agents and servants of appellee in charge of the engine saw his peril, or by the exercise of ordinary care could have seen him, and failed to use ordinary care to prevent his injuries, and sought a recovery of the appellee in the sum of $25,000. The appellee interposed a general demurrer to the peHURT, J. The appellant, Elijah C. Fields, tition and amended petitions, which the court instituted this suit in the Lee circuit court having considered, sustained, and, the appelagainst the Louisville & Nashville Railroad lant declining to plead further, adjudged Company. The petition and two amended pe- that the petition as amended be dismissed. titions filed by appellant allege, in substance, To the judgment of the court sustaining the that about one year ago the appellee con- demurrer and dismissing the petition, the apstructed, in the "heart" of the city of Beatty-pellant excepted, and prayed an appeal to ville, which is a town of the fifth class, a this court, which was granted. bridge; that the bridge was 12 feet wide, with [1, 2] The persons for whom those opera solid floor; that the railroad track of appel- ating railroad trains are required to keep a lee, which passed over the bridge, was on a lookout, and for whose benefit it is the duty level grade, and at grade with the streets and of the railroad company to give warning of houses of the city; that the bridge was daily the approach of trains, and to operate the used as a passway by 200 to 500 people; trains at a reasonable rate of speed, consist that its habitual use by the public as a pass- of two classes: Those persons who use the way was done with the knowledge and acqui- tracks of the railroad company as a matter escence of the appellee; that its use had been of right, compose one class; those who are continued by the public, in the way described, licensed by the railroad to use its tracks for about 12 months theretofore, and the fact compose another class. Those operating the of its use in that way was well known to the railroads are required to give a warning of appellee, its agents and servants in charge of the approach of the trains, and to operate its trains; that the track of the road and them at a reasonable rate of speed, so that, bridge crossed at grade with the streets of if any persons are discovered to be in peril, the city; that on the night of January 11, the trains may be stopped, and to keep a 1913, the appellant was crossing the bridge in lookout, wherever the presence of persons, the dark, and the appellee, by and through who use the tracks as a matter of right, or as its gross negligence, negligently backed an licensees, must be anticipated. These places engine and tender over the bridge, while ap- are at street crossings, and at points on the pellant was walking thereon, and forced him roads in cities, towns, and populous comfrom the bridge; and that he was caused, munities, where the public generally have thereby, to fall 40 or 50 feet, breaking the been in the habit of using the tracks and right bones of both legs, and injuring him other- of way with the knowledge and consent of wise. It was further alleged that the appel- the railroad company. At such places, those lee was careless and negligent in the opera-operating railroad trains must keep a look For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes out for persons who may be upon the tracks, | road, especially at night, when his presence and to give proper signals of their approach, could not be known, however good a lookout and to take such precautions as the circum- might be kept, and over which bridge trains stances demand, in order to prevent injuries and engines of different kinds are liable to to and deaths of people. I. C. R. R. Co. v. pass at any time, and the passing of them Flaherty, 139 Ky. 150, 129 S. W. 558; L. & may always be reasonably expected, and N. R. R. Co. v. McNary's Adm'r, 128 Ky. 408, where, from the narrowness of the bridge, 108 S. W. 898, 32 Ky. Law Rep. 1266, 17 L. the person going upon it cannot escape death R. A. (N. S.) 224, 129 Am. St. Rep. 308; I. C. or serious injury if an engine or train passes R. R. Co. v. Murphy's Adm'r, 123 Ky. 787, 97 over it, and where he must certainly know S. W. 729, 30 Ky. Law Rep. 93, 11 L. R. A. that his presence upon the bridge, when a (N. S.) 352; L. & N. R. R. Co. v. Veech, 129 train passes, must necessarily result in his Ky. 775, 112 S. W. 869; Shelby v. C. & O. death or great bodily injury, is conduct on Ry. Co., 85 Ky. 224, 3 S. W. 157, 8 Ky. Law his part, to say the least, which indicates Rep. 928; Conely v. C., N. O. & T. P. Ry. Co., a very great recklessness and disregard of 89 Ky. 402, 12 S. W. 764, 11 Ky. Law Rep. his own life and safety. 602. [3, 4] The railroad companies are held to a strict observance of these requirements, and necessarily so, because in the traveled streets of the towns, where the railroad tracks run longitudinally upon or cross the streets, and upon the side tracks, and other tracks of the railroad companies about depots, where the people are invited to come, and to use these tracks, for business with the railroad companies, and the street crossings, and other crossings where the people have a right to cross; if the communities are populous, from the number of persons passing, the danger to life is great, unless extreme precautions are taken by those operating the roads to prevent injury, and the law uniformly requires them, not only to give notice of their approach, and to keep a lookout, and to reduce the speed of trains, so that they may be under control, but to take such other precautions as the circumstances demand for the safety of such people. The persons who have a right to go upon the railroad track, and those licensed to do so, are required, when doing so, to exercise ordinary care for their own safety. The persons, however, who are not in the employ of a railroad, and have no business to transact with a railroad company, and who voluntarily and for their own convenience go upon the railroad tracks and right of way or bridges of a railroad company, are denominated trespassers. This court has uniformly held that where an individual goes upon the track of a railroad in the country, and not in a town or village, or populous community, he is a trespasser, and that those operating the railroad trains owe him no duty, either to keep a lookout, or to regulate the speed of their trains, or to give any signals, or to take any precautions whatever for his safety. The same rule has been held to apply to persons going upon the bridges built by the railroad companies, and used by them for the passage of their trains over streams, and a like rule has been held to apply to those who go upon high trestles, over which the tracks of a railroad company pass. It seems that one who voluntarily, and for his own In the case of Brown's Adm'r v. L. & N. R. R. Co., 97 Ky. 228, 30 S. W. 639, 17 Ky. Law Rep. 145, Brown was walking upon the track of the railroad in the city of Louisville, and, even in that state of case, he was held to be a trespasser, and for an injury from a passing train, which resulted in his death, the railroad company was held not to be responsible. In the case of L., H. & St. Louis R. Co. V. Woolfork, 99 S. W. 294, 30 Ky. Law Rep. 569, Woolfork, the injured person, was walking upon a railroad trestle, within the corporate limits of the city of Paducah, which had no footway plank, and was not intended to be used as a walking way, although a great many people used it as a passway and traveled over it. This court held that he was a trespasser. In the opinion the court said: When the company's track crosses the streets of cities, or town, at grade, or constitutes a part of the highway of municipalities, or thickly settled places, it owes the lookout duty, but not upon a trestle. In the case of Prince v. I. C. R. R. Co., 99 S. W. 293, 30 Ky. Law Rep. 469, Prince went upon a narrow bridge of the railroad company in the town of Paducah. A freight train was backed down upon the bridge, and she was knocked off and injured. She was held to be a trespasser. In the case of C. & O. Ry. Co. v. Barbour's Adm'r, 93 S. W. 24, 29 Ky. Law Rep. 339, Virgie Barbour went upon the bridge of the railroad, and was run over by a train and killed, and in that case she was held to be a trespasser. In the case of Smith's Adm'r v. I. C. R. R. Co., 90 S. W. 254, 28 Ky. Law Rep. 723, Miss Johnnie Smith went upon the bridge of the railroad, and was run over and killed by a train. She was held to be simply a trespasser. In the case of Flint v. I. C. R. R. Co., 88 S. W. 1055, 28 Ky. Law Rep. 1, Flint went upon a high trestle of the railroad, and was compelled to jump off to save himself, by reason of the approach of a train, and was seriously injured. This court held that he was a trespasser. & T. P. Ry. Co., 163 Ky. 105, 173 S. W. | to travel there, but for his own convenience, 335, Curd went upon a high trestle on the undertook to walk over this bridge. Under railroad, and was killed by a train. He was circumstances of this kind, those operating held to be a trespasser, and, also, that a the engine would not owe him any duty to mere acquiescence by the railroad cannot keep a lookout for him, nor to give any sigbe construed into a promise that its bridge nals of the approach of the engine, and he might be used by foot passengers as a high- did not have any right to complain that the way, so as to entitle them to a lookout duty engine was not under control of the persons or make them anything but trespassers. having charge of it, or that no lights were displayed, or any lookout had, or any signals given, or that the engine was not properly manned or managed, or that the hostler in charge of it was incompetent, and neither did he have any right to expect that those operating the engine would anticipate his presence upon the bridge. It has been so often held by this court, that it is needless to cite authorities in support of it, that the only duty which those operating a railroad train owe to a trespasser is the humane duty of exercising ordinary care for his safety, after they have discovered the peril in which he has placed himself. He In the case of Beiser v. C. & O. Ry. Co., 92 S. W. 928, 29 Ky. Law Rep. 249, Beiser went upon the railroad track in Covington, which was elevated above the streets. was there injured by a passing train, and the court held that he was a trespasser. In the case of C. & O. Ry. Co. v. Barbour's Adm'r, supra, this court said: "The fact that a great many people trespassed upon the bridge, and that the railroad acquiesced in this, without openly complaining, in no wise conferred upon the decedent, or the public, the legal right so to do." In L. H. & St. L. R. R. Co. v. Woolfork, supra, it was held that people could not acquire the status of licensees by continuous trespassing, by traveling over the trestle, where Woolfork received his injury. The law applying in this jurisdiction to persons who go upon railroad bridges, with out invitation from the railroad authorities, and who are not employés of the railroad and have no business with the railroad, and who simply use the bridges for their convenience or pleasure, is that which applies to trespassers. This is not an inhuman rule, but is one designed to save people from death and injury, by discouraging them from recklessly exposing themselves to such useless perils as going upon railroad bridges for their pleasure or convenience, when the roads and passways, which are designed and intended for their use in traveling, are attended with safety, and to encourage them to exercise ordinary care for their own safety. The appellant, in this case, does not pretend to have been exercising any care, ordinary or otherwise, for his own safety. [6] The allegation in the petition that those in charge of the engine saw his peril, or by the exercise of ordinary care could have seen him, and failed to use ordinary care to prevent his injuries, after they had seen him, is nothing more than an allegation that they could have seen him if they had been maintaining a lookout for him; but it was not a duty of theirs to keep a lookout for him. C. & O. Ry. Co. v. Lang's Adm'r, 135 Ky. 86, 121 S. W. 993. It is therefore ordered that the judgment appealed from be affirmed. MUSIC v. BIG SANDY & K. R. R. CO. March 18, (Court of Appeals of Kentucky. 1915.) 1. EMINENT DOMAIN 138 MEASURE OF DAMAGES-DAMAGES TO LAND NOT TAKEN. The measure of damages for property taken or injured under eminent domain, where part of the tract is taken, is the fair market value of [5] While the petition in the case at bar the part taken, considering it in relation to the entire tract, together with such other direct alleges that the bridge of the appellee had damages as result to the remainder of the tract a floor in it, it does not show by anything by reason of the situation in which it is left by alleged that it was put there for the pur-the taking of the part in question, and by reason of such improvements, fencing, etc., as may pose of accommodating persons in traveling be rendered necessary by the taking of the part, over it, or that any invitation was thereby in the establishment of new means of egress and extended to the public to use the railroad ingress, and otherwise necessary for the reasontrack over the bridge as a passageway. The appellant, with the knowledge that trains and engines passed over the bridge at such times as the railroad company had desire for them to do so, that the bridge was not of sufficient width to accommodate a foot passenger upon it at the same time with a locomotive, that the distance from the bridge down to the creek below it was 40 or 50 feet, that it was at night, when those operating the engine would probably be unable to see him until too late to save him, if they should see him, and without any right able enjoyment of the remainder of the tract; but such direct damages shall not exceed the difference between the fair market value of the whole tract immediately before the taking and the fair market value of the remainder immediately after the taking. [Ed. Note. For other cases, see Eminent Domain, Cent. Dig. § 370; Dec. Dig. 138.] MEASURE OF 2. EMINENT DOMAIN 145 In arriving at the damages from taking land by a railroad indirect or consequential benefits may not be deducted from the direct damages, but if they exceed the indirect or incidental damages resulting from a prudent construction and operation of the railroad, they do not affect For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |