Hendrickson v. Louisville & N. Ry. Co.

• Decision Date: 11 March 1910
• Citation: 126 S.W. 117,137 Ky. 562
• Parties: HENDRICKSON v. LOUISVILLE & N. RY. CO.
• Court: Kentucky Court of Appeals

126 S.W. 117

137 Ky. 562

HENDRICKSON v. LOUISVILLE & N. RY. CO.

Court of Appeals of Kentucky.

March 11, 1910

Appeal from Circuit Court, Bell County.

"To be officially reported."

Action by John Hendrickson against the Louisville & Nashville Railway Company. Judgment for defendant, and plaintiff appeals. Reversed and remanded.

O. V Riley and W. T. Davis, for appellant.

Benjamin D. Warfield, Charles W. Metcalfe, and J. W. Alcorn, for appellee.

HOBSON J.

John Hendrickson brought this suit against the Louisville &amp Nashville Railway Company. He alleged in his petition that he has a son, James E. Hendrickson, who is under 21 years of age; that the servants of the defendant in charge of one of its trains, knowing that his son was not of age, allowed and directed his son to render services on the train as a brakeman; that the service was hazardous and that all this was done without his knowledge or consent; that, while his son was acting in the capacity of a brakeman on the train, he was thrown from the train and injured; that by reason of his injury his son had been confined to his bed, requiring constant care, nursing, and medical attention; that he had thus been put to great care and expense in taking care of his son to the amount of $754, and had lost the services of his son which were reasonably of the value of $250. The defendant filed an answer, the first paragraph of which was a traverse of the allegations of the petition. The second paragraph was in these words: "For further defense it alleges that there was a full complement of men in charge of the train and there was no necessity for the employment or acceptance of the services or rendition of the service of the plaintiff's said son; that the conductor in charge of the train had no right or authority from this defendant to allow or suffer or permit or employ or accept the service of the plaintiff's said son to get aboard said train or ride therein at the time or times mentioned in the petition, or at any time. Wherefore, defendant prays to be hence dismissed with its costs." The plaintiff demurred to the second paragraph of the answer. His demurrer was overruled. The plaintiff stood by his demurrer, and, his petition having been dismissed, he appeals.

It is insisted for the defendant that the petition is insufficient that the court should have carried the demurrer back to the petition, and that, therefore, the plaintiff cannot complain that the demurrer to the answer was overruled. It is said that the petition does not sufficiently charge that the conductor of the train knew that the son was not of age; but if there was any defect in the petition on this subject, it was cured by the first paragraph of the defendant's answer. The averments of the petition are sufficient to show that the conductor had the son on the train acting as a brakeman. Whether or not the defendant is liable if the conductor had no authority to employ additional help, when he had a full complement of men, and there was no emergency calling for the employment of others, is a question raised by the demurrer to the answer. These matters were set out in the answer, and, if they constituted a defense to the action, the demurrer to it was properly overruled. The defendant relies on the case of Clark v. Louisville & Nashville Railway Co., 111 S.W. 344, 33 Ky. Law Rep. 797. That was a suit by Clark himself for his own injury, where he had been hurt on a train while assisting the train crew by their direction and it was held that he had voluntarily assumed the service, and that he could not recover unless there was negligence on the part of the train crew. But this action is not brought by the son. It is brought by the father to recover for the injury done to him by the crippling of his son when his son was used as a brakeman on the train, without his knowledge or consent, and with the knowledge on the part of the conductor that he was under 21 years of age. The court in Cincinnati,...