Dalton's Adm'r v. Louisville & N.R. Co.

• Decision Date: 02 May 1900
• Citation: 56 S.W. 657
• Parties: DALTON'S ADM'R v. LOUISVILLE & N. R. CO. [1]
• Court: Kentucky Court of Appeals

56 S.W. 657

DALTON'S ADM'R v. LOUISVILLE & N. R. CO. ^[1]

Court of Appeals of Kentucky.

May 2, 1900

Appeal from circuit court, Hardin county.

"Not to be officially reported."

Action by Thomas Dalton's administrator against the Louisville &amp Nashville Railroad Company to recover damages for the death of plaintiff's intestate. Judgment for defendant, and plaintiff appeals. Affirmed.

Gardner & Moxley, for appellant.

W. H Marriott and H. W. Bruce, for appellee.

HOBSON J.

Appellant filed this suit to recover of appellee for the loss of the life of his intestate, and, a demurrer having been sustained to his petition and his action dismissed, has appealed to this court. He alleges that his intestate boarded or entered at Glendale, Ky. a train of appellee usually employed in the transportation of freight, and commonly known as a "freight train"; that this train was proceeding southward; that the fact that his intestate boarded this southbound train, and was being carried on the train, was well known to appellee's agents and servants in charge of it; that about 10 miles south of where he boarded the train and after it had passed two or more local stations, it collided with another freight train, going north, by reason of the fact that the north-bound train had disobeyed its orders, and failed to stop at a station which it had just passed, where it was ordered by the train dispatcher to take the siding until the south-bound train passed it; and that in the collision his intestate was killed. As the petition alleges that the train he was on was one that was usually employed in the transportation of freight, and commonly known as a "freight train," containing no averment that it carried passengers, it must be inferred that the train was not one on which passengers were carried; and as it is averred that plaintiff boarded the train at Glendale, and that the servants of appellee knew he was on the train, and permitted him to remain on it until it passed two local stations, there being no averment that he paid fare or had any right on the train, it must be inferred that he was on a freight train without right, and by the sufferance of appellee's servants in charge of it.

It is earnestly insisted for appellant that, notwithstanding this he may recover, because of the gross negligence of appellee in allowing the two trains to collide. But the trouble with this is that appellee owed appellant no duty to...