133 S.W. 983 (Ky.App. 1911), Illinois Cent. R. Co. v. Futrell

Citation:133 S.W. 983, 141 Ky. 847
Opinion Judge:CLAY, C.
Party Name:ILLINOIS CENT. R. CO. v. FUTRELL.
Attorney:Trabue, Doolan & Cox, Oliver & Oliver, Blewett Lee, W. S. Horton, and C. L. Sivley, for appellant. Jack E. Fisher, for appellee.
Case Date:February 01, 1911
Court:Court of Appeals of Kentucky
 
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Page 983

133 S.W. 983 (Ky.App. 1911)

141 Ky. 847

ILLINOIS CENT. R. CO.

v.

FUTRELL.

Court of Appeals of Kentucky.

February 1, 1911

Appeal from Circuit Court, Marshall County.

Action by D. D. Futrell against the Illinois Central Railroad Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Page 984

Trabue, Doolan & Cox, Oliver & Oliver, Blewett Lee, W. S. Horton, and C. L. Sivley, for appellant.

Jack E. Fisher, for appellee.

CLAY, C.

Appellee, D. D. Futrell, brought this action against the appellant, Illinois Central Railroad Company, to recover damages for personal injuries alleged to have been received by him while attempting, on January 15, 1910, to board one of appellee's passenger trains. Appellant moved to make the allegations of the petition more specific, and that appellee be required to show whether the train was a passenger or a freight train, and the time of its arrival at, and departure from, the station where the alleged injuries took place. Thereupon appellee amended his petition and stated that the train was No. 121, that it was a passenger train, and passed the station, Styles, at about 4 o'clock in the afternoon. After appellant's demurrer to the petition was overruled, it filed an answer denying the allegations of the petition. By agreement of the parties an order was then entered controverting of record the affirmative allegations of the answer. When the case was called for trial both parties announced ready. While appellee was upon the stand he produced a cash fare receipt which appellant's counsel claim was dated January 4, 1910. Thereupon appellant asked and was granted leave to withdraw the original answer. It then filed a pleading denominated "second answer," by which it admitted that appellee was a passenger at the time and place complained of, but denied negligence on its part. The "second answer" also contained a second paragraph which pleaded contributory negligence on the part of appellee. To this answer appellee filed no reply. At the conclusion of the evidence, appellant entered a motion to discharge the jury and continue the case on the ground of surprise; and in support of this motion it filed the affidavit of its attorney. The ground of surprise was that the cash fare receipt bore date January 4, 1910, instead of January 15, 1910, and that appellant had been misled as to the date when the injury occurred...

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