Cincinnati, N.O. & T.P.R. Co. v. Jackson

• Decision Date: 05 October 1900
• Citation: 58 S.W. 526
• Parties: CINCINNATI, N. O. & T. P. R. CO. v. JACKSON. [1]
• Court: Kentucky Court of Appeals

58 S.W. 526

CINCINNATI, N. O. & T. P. R. CO. v. JACKSON. ^[1]

Court of Appeals of Kentucky.

October 5, 1900

Appeal from circuit court, Scott county.

"Not to be officially reported."

Action by Walter Jackson, by next friend, against the receiver of the Cincinnati, New Orleans & Texas Pacific Railroad Company to recover damages for personal injuries. Judgment for plaintiff, and defendant appeals. Reversed.

Victor F. Bradley, for appellant.

Owens &amp Finnell, for appellee.

PAYNTER J.

The appellee, Walter Jackson, was a boy over 16 years of age when he lost his arm by appellant's car passing over it. A freight train on the appellant's road left Georgetown going to or beyond a station called "Donerail," on its line. Before it started, the appellee got on three or four times, but was compelled to leave it by appellant's employés. When it reached the Y beyond Georgetown, he succeeded in getting on, but was afterwards discovered according to his testimony, by the conductor, who said he might ride to Donerail if he would throw the switch at that place. This testimony was offered for the purpose of trying to show that he sustained the relationship of passenger to the appellant. According to his testimony, when the train reached the switch at Donerail, which seems to have been near the depot, he got off and threw it, and then got back on, and signaled the engineer to back the train; that he did back it so as to handle some cars on the switch; that he then started the train forward, and in doing so a sudden jerk was given which caused him to fall and receive the injury. He said that, if the whistle was blown or bell rung before the train started, he did not hear either. If it could be said that he sustained the relationship of passenger to the carrier from the time the conductor gave him permission to ride until he threw the switch, that relationship certainly ceased when he threw it, because, according to his claim, he was permitted to ride upon the train on condition that he would throw it at Donerail. There was nothing in this arrangement which rendered it necessary for him to again get on the train. He had reached his destination. The conductor was standing at the depot, and the switch was on the opposite side of the train from where he was standing. So far as the testimony of the appellee shows, the conductor was looking after his duties as such from where he stood, and there is no evidence that h...