Illinois Cent. R. Co. v. Futrell

• Decision Date: 01 February 1911
• Citation: 141 Ky. 847,133 S.W. 983
• Parties: ILLINOIS CENT. R. CO. v. FUTRELL.
• Court: Kentucky Court of Appeals

133 S.W. 983

141 Ky. 847

ILLINOIS CENT. R. CO. v. FUTRELL.

Court of Appeals of Kentucky.

February 1, 1911

Appeal from Circuit Court, Marshall County.

Action by D. D. Futrell against the Illinois Central Railroad Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Trabue Doolan & Cox, Oliver & Oliver, Blewett Lee, W. S. Horton, and C. L. Sivley, for appellant.

Jack E Fisher, for appellee.

CLAY C.

Appellee D. D. Futrell, brought this action against the appellant, Illinois Central Railroad Company, to recover damages for personal injuries alleged to have been received by him while attempting, on January 15, 1910, to board one of appellee's passenger trains. Appellant moved to make the allegations of the petition more specific, and that appellee be required to show whether the train was a passenger or a freight train, and the time of its arrival at, and departure from, the station where the alleged injuries took place. Thereupon appellee amended his petition and stated that the train was No. 121, that it was a passenger train, and passed the station, Styles, at about 4 o'clock in the afternoon. After appellant's demurrer to the petition was overruled, it filed an answer denying the allegations of the petition. By agreement of the parties an order was then entered controverting of record the affirmative allegations of the answer. When the case was called for trial both parties announced ready. While appellee was upon the stand he produced a cash fare receipt which appellant's counsel claim was dated January 4, 1910. Thereupon appellant asked and was granted leave to withdraw the original answer. It then filed a pleading denominated "second answer," by which it admitted that appellee was a passenger at the time and place complained of, but denied negligence on its part. The "second answer" also contained a second paragraph which pleaded contributory negligence on the part of appellee. To this answer appellee filed no reply. At the conclusion of the evidence, appellant entered a motion to discharge the jury and continue the case on the ground of surprise; and in support of this motion it filed the affidavit of its attorney. The ground of surprise was that the cash fare receipt bore date January 4, 1910, instead of January 15, 1910, and that appellant had been misled as to the date when the injury occurred. This motion was overruled. The trial resulted in a verdict for appellee in the sum of $300. Thereupon appellant entered a motion for a judgment notwithstanding the verdict. This motion was overruled, as was also its motion for a new trial. From the judgment based on the verdict this appeal is prosecuted.

The evidence of appellee and one other witness is to the effect that appellee flagged passenger train No. 121, which arrived at Styles about 4 o'clock on the afternoon of January 15th. Before he had been given a reasonable opportunity to board the train, it was suddenly started, and appellee was injured. The facts connected with appellee's injuries and the extent thereof we deem it unnecessary to discuss, for the reason that the only two grounds urged for reversal are: First, the failure of the court to set aside the jury and continue the case on the ground of surprise; second, the failure of the court to award appellant a judgment notwithstanding the verdict.

While the...