Bogard v. Illinois Cent. R. Co.

• Decision Date: 13 October 1903
• Citation: 76 S.W. 170,116 Ky. 429
• Parties: BOGARD v. ILLINOIS CENT. R. CO.
• Court: Kentucky Court of Appeals

76 S.W. 170

116 Ky. 429

BOGARD v. ILLINOIS CENT. R. CO.

Court of Appeals of Kentucky.

October 13, 1903

Appeal from Circuit Court, McCracken County.

"To be officially reported."

Action by Abe Bogard against the Illinois Central Railroad Company. From a judgment dismissing the action, plaintiff appeals. Reversed.

Hendrick & Miller, for appellant.

Wheeler & Hughes, J. M. Dickinson, and Pirtle & Trabue, for appellee.

BURNAM C.J.

On the 7th of October, 1902, the appellant, Abe Bogard, brought suit against the Illinois Central Railroad Company in the McCracken circuit court to recover damages alleged to have been suffered by him by reason of certain alleged acts of negligence of appellee in the operation of one of its engines and train of cars in McCracken county. The petition is as follows: "The plaintiff, Abe Bogard, says that he is a citizen and resident of the state of Kentucky and county of McCracken, and that the defendant is a corporation authorized by the laws of Kentucky to operate a railroad, and is now and was at all times hereinafter named, operating and running a railroad in and through the county of McCracken and state of Kentucky, and said defendant is empowered by law to sue and be sued, contract and be contracted with; and heretofore and within the last twelve months, while engaged in operating and running an engine along its said road in the said county of McCracken, the defendant, without fault or negligence on the part of the plaintiff, carelessly, recklessly, and wrongfully, and by willful, reckless, and wrongful act, ran its engine and train upon and against plaintiff, and knocked him down, and greatly bruised and injured his legs, thighs hips, back, spine, arms, chest, neck, and head, and made plaintiff sick and sore for many days, and plaintiff's said injuries are permanent, and he will never recover from some of same; thereby negligently inflicting upon him and causing him to suffer great bodily pain and mental agony, and causing him to lose much valuable time, and to incur doctor's bill to the amount of $25; and by said collision, caused by the negligence and wrongful act of defendant running its engine aforesaid upon plaintiff, he has been damaged in the sum of two thousand dollars ($2,000). Wherefore he prays judgment against the Illinois Central Railroad Company for $2,000, his costs herein expended, and for all proper relief." The railroad company, at the appearance term of the action, moved the court in writing to require the plaintiff, in addition to the facts alleged in his petition, to state the date of the injury complained of the point where it occurred, the number of the train producing it, and the parties in charge thereof. Over the objections of plaintiff, the motion was sustained, and, declining to plead further, his petition was dismissed without prejudice, and he has appealed to this court.

The only question which arises upon the present appeal which is reviewable in this court is whether or not the court below had the power to grant the application of the defendant, and, if so, whether the facts in the case justified their exercise herein. If it has exceeded its authority, we have jurisdiction, and it is our duty to correct the error of law. There is no uncertainty or indefiniteness with respect to the nature of the charge made against the defendant. The difficulty under which the defendant claims to labor is that the plaintiff has not sufficiently specified the facts as to the time and place where the alleged acts of negligence occurred to enable it to intelligently defend the action. The defendant operates a trunk line through McCracken county, and it has perhaps 50 miles of track within the county. In course of 12 months thousands of trains pass over its road, operated by hundreds of different employés, at all hours of the day and night. The plaintiff necessarily has information...