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

• Decision Date: 28 May 1901
• Citation: 63 S.W. 580,111 Ky. 30
• Parties: FAGG'S ADM'R v. LOUISVILLE & N. R. CO. [1]
• Court: Kentucky Court of Appeals

63 S.W. 580

111 Ky. 30

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

Court of Appeals of Kentucky.

May 28, 1901

Appeal from circuit court Simpson county.

"To be officially reported."

Action by J. P. Waldron, administrator of Solon Fagg, against the Louisville & Nashville Railroad Company, to recover damages for the death of plaintiff's intestate. Judgment for defendant, and plaintiff appeals. Reversed.

Roark &amp Finn, for appellant.

Edward W. Hines and J. A. Mitchell, for appellee.

PAYNTER C.J.

The plaintiff, J. P. Waldron, administrator of Solon Fagg deceased, instituted this suit against the appellee to recover damages for the alleged negligent killing of the intestate. The question here for review is the action of the court in sustaining a demurrer to the petition as amended and in dismissing it upon appellant's failure to plead further. It is in two paragraphs, but, in our opinion, it was not necessary or proper to thus paragraph it. If it is good it simply states one cause of action; that is, the appellee's negligent killing of the appellant's intestate, which resulted in damage to the estate of the intestate. Because there may have been one or more acts of negligence which produced the injury resulting in death does not make it proper, in stating the cause of action, to do so in as many paragraphs as there may have been acts of negligence which separately or collectively produced the injury. So, in stating the averments of the petition, we will do so as though it was not paragraphed. It is averred that there is a deep cut upon the defendant's roadbed in the city of Franklin, immediately north of defendant's north switch; that upon a night in December, 1898, the decedent, Solon Fagg, was in a drunken and helpless condition, and at about 8:00 o'clock upon that night, while in that condition, boarded the north-bound freight train in the cut; that the night was dark and rainy; that the agents and servants of defendant in charge of the freight train knew the drunken and helpless condition of the decedent; that they knew that other trains of the defendant would shortly pass through the cut, yet they then and there negligently and wrongfully ejected him from the train; that it was natural and probable that death or great bodily harm would be inflicted upon him by reason of being ejected from the train; that upon the same night, while upon the track in the cut, drunk and in a helpless condition, he was run over and killed by one of the defendant's trains; that upon the night in question the defendant's superintendent at Nashville, Tenn., and its agent at Franklin, Ky. had notice that he was in the cut upon defendant's track in a drunken and helpless condition; that the superintendent and agent knew that in a short while a north-bound passenger train would pass through the cut where he was, and that he was in great danger; that the superintendent and agent had ample time and opportunity to notify defendant's crew in charge of the north-bound passenger train which would shortly pass through the cut that he was in the cut, and to take other precautions to prevent his injury; that they failed to notify the crew upon that north-bound passenger train concerning him, and failed and refused to use any care or take any precaution to prevent injury to him; that the north-bound passenger train ran over and killed him in the cut upon the night in question. In an amended petition it is averred that the decedent was killed at the point where he was ejected from the train; that if the superintendent at Nashville and the agent at Franklin had notified the crew upon the passenger train of the position which he occupied, and of his condition, those in charge of it could and would have avoided injuring him, without endangering the passengers or the train. The foregoing averments are substantially those contained in the petition as amended; at any rate, all those that are essential to be stated for the purpose of considering the sufficiency of the petition. They are taken as true on demurrer.

For the purpose of considering the question involved, the facts averred may be summarized as follows: Decedent, without a right to do so, placed himself upon a freight train, and thus became a trespasser. He did this while the train was standing in a deep cut, on a dark and rainy night in December. While he was in a drunken and helpless condition, he was ejected from the train in the cut, and left there in the condition described. This condition was known to those in charge of the train from which he was ejected. They also knew that shortly thereafter a passenger train would pass over the track through the cut. The superintendent of the road at Nashville and the agent at Franklin, the station near by where the ejection took place, were notified that he was on the track in the cut in a drunken and helpless condition, and this notice they received in time to have saved him from the impending peril by the exercise of ordinary care, and in doing which it would not have hazarded the lives of the passengers or the property of the appellee. The question is not involved as to the right of those in charge of the freight train to have ejected the decedent. That he was a trespasser, and the right to eject him, is admitted. The law gave the right to the agents and servants of the appellee to eject him. The question here for determination is whether they should have ejected him at the time, place, and under the circumstances averred in the petition, considering his mental and physical condition. The liability of appellee, if it exists, arises from the disregard of those in charge of the freight train for human life while in the performance of a legal right, and the disregard for human life by the appellee's superintendent and agent after they were advised of the perilous position which the decedent occupied, and their failure to use care to save him. All courts and all law writers agree that those in charge of a train have no right to throw a trespasser from it while moving, and thus jeopardize his life. Principles of humanity forbid the exercise of the right in such a cruel manner. For the same reason, if they eject a trespasser who is not imperiling the lives of the officers in charge of the train, or the passengers, or doing something which makes it hazardous to permit him to remain upon the train (Railroad Co. v. Logan, 88 Ky. 232, 10 S.W. 655, 3 L.R.A. 80), they must be regardful of the time, place, and circumstances under which they perform the act of removal. If the decedent had boarded the train several miles from the cut, and after reaching there had been removed, under the circumstances described, it seems to us that no one could have had any difficulty in reaching the conclusion that death or great bodily harm would have been the natural and probable result of the removal, and a liability would have been incurred by the appellee. In this case, according to the averments of the petition, he got on the train, and, after getting on, was a trespasser, just the same as if he had boarded it at another station, and been carried to that point. Getting on the train was an accomplished fact. The fact that he had just got on the train while it was standing in the cut did not give those in charge of it the right to seize and hurl him from it, without regard to consequences; neither did that fact give them the right to eject him, regardless of time, place, and circumstances, and his...