Chesapeake & N. Ry. v. Hanmer

• Decision Date: 29 January 1902
• Citation: 66 S.W. 375
• Parties: CHESAPEAKE & N. RY. v. HANMER. [1]
• Court: Kentucky Court of Appeals

66 S.W. 375

CHESAPEAKE & N. RY. v. HANMER. ^[1]

Court of Appeals of Kentucky.

January 29, 1902

Appeal from circuit court, Allen county.

"Not to be officially reported."

Action by W. G. Hanmer against the Chesapeake & Nashville Railway to recover damages for personal injuries. Judgment for plaintiff, and defendant appeals. Affirmed.

W. C Goad, W. L. Porter and W. C. Dismukes, for appellant.

Lewis McQuown and B. W. Bradburn, for appellee.

O'REAR J.

This action was for personal injuries sustained by appellee while a passenger on appellant's railway between Gallatin and Scottsville. The jury awarded $1,100 in damages.

The train on which appellee was a passenger when injured fell through a high trestle. It is alleged that appellee was "thereby severely injured, cut and bruised upon his body, arms, and legs, two of his ribs were broken, and he was otherwise greatly hurt and wounded." The first ground of reversal urged is that the trial court erred in overruling appellant's motion to make the petition more specific as to how he was "otherwise hurt." The allegations of the petition of specific injuries preclude proof of others not made. The reason is, the pleader thereby notifies the defendant of the particular injury upon which he will seek to recover, challenging an issue upon that fact alone, and inviting evidence solely to support or refute it. It would be manifestly unfair to allow the plaintiff to then enlarge his case, and make proof of injuries different and distinct from those pleaded. The words "and otherwise greatly hurt and wounded," when coupled with such specific allegations, may be treated as surplusage, and consequently ignored. Such was the ruling of the court in this case, and it is approved.

The second objection is that the court erred in not requiring appellee to elect whether he would prosecute for the tort or upon the breach of contract. We are of opinion that but one cause of action was stated in the petition, and that was in tort, for the negligence of appellant's servants and employés in failing to keep its road in proper repair, by reason of which the bridge fell. Its timbers were alleged and shown to have been rotten and insecure. What was said about the contract to carry appellee safely as a passenger was merely matter as inducement to show that appellee was where he had a legal right to be when injured. McMurtry v Railroad Co., 84 Ky. 462, 1 S.W. 815.

After issue joined, one Robert...