Illinois Cent. R. Co. v. Stith's Adm'x

• Decision Date: 25 March 1905
• Citation: 85 S.W. 1173,120 Ky. 237
• Parties: ILLINOIS CENT. R. CO. et al. v. STITH'S. ADM'X.
• Court: Kentucky Court of Appeals

85 S.W. 1173

120 Ky. 237

ILLINOIS CENT. R. CO. et al. v. STITH'S. ADM'X.

Court of Appeals of Kentucky.

March 25, 1905

Appeal from Circuit Court, Hardin County.

"To be officially reported."

Action by Robert H. Stith's administratrix against the Illinois Central Railroad Company and another. Judgment for plaintiff. Defendants appeal. Reversed.

Poston & Moorman, Pirtle, Trabue, Doolan & Cox, and J. M. Dickinson for appellants.

L. A Faurest, for appellee.

NUNN J.

The appellee's intestate was an engineer on a work train of appellant, and was killed on December 27, 1902, at Caneyville, Grayson county, Ky. The decedent at the time of his death was a resident of Louisville, Jefferson county, Ky where the appellee qualified as the administratrix of his estate. She, as such administratrix, instituted this action in the Hardin circuit court, and, in substance, alleged in the petition that appellants, Illinois Central Railroad Company and one Louis Cofer, an engineer in the employ of the railroad company, by gross negligence ran its engine and train of cars on its railroad, upon which Cofer was acting as engineer, with great force and violence, against the engine in charge of her intestate, and upon which he was at the time, and against the cars attached thereto, and against her intestate, and did thereby kill him, to appellee's damage in the sum of $20,000. The appellant first filed a plea to the jurisdiction of the Hardin circuit court, stating that the accident occurred in Grayson county, Ky.; that Stith, at the time he was killed, was a citizen and resident of Jefferson county, Ky.; that appellee qualified as his administratrix in Jefferson county, Ky. and that she resided in Jefferson county at the time of filing this suit, and still resided there; that appellant had its chief officer and offices which it had in Kentucky in Jefferson county at the time of filing this suit and ever since; that its co-appellant, Louis Cofer, did not reside in Hardin county at the time of the happening of the things complained of in the petition, and did not then reside in Hardin county. Upon these facts, it asked for a dismissal of the action because the Hardin circuit court did not have jurisdiction. The appellant, by answer and amended answers, traversed all the material allegations of negligence contained in the petition, and set up the separate defense of contributory negligence on the part of Stith, and also set out certain rules of the company for the government of its employés, and averred that Stith's position on the track at the time he was killed was taken in violation of these rules. It appears that the reply of appellee was lost from the record, and, in order to avoid delay and expense, it was agreed that all pleadings should stand as if all affirmative matter in them had been controverted of record, and as if all affirmative pleas that could have been made had been made thereto, and the affirmative pleas controverted of record. Thus the issues were fairly made up as to the place of residence of appellee at the institution of the action and down to the time of trial, and as to negligence, contributory negligence, and the violation of rules governing the service of decedent and other employés of the appellant company. Upon these issues there was a trial, and a verdict and judgment for appellee for $5,000 against both of the appellants. Their motion for a new trial having been overruled, they have appealed.

The first ground urged for a reversal is that the lower court had no jurisdiction of the action. It appears from the record that at the time of Robert Stith's death he was a resident of Jefferson county, Ky. and appellee was appointed administratrix of his estate by the county court of that county. The injuries causing his death were inflicted in Grayson county. But at the time of the institution of this action the appellee was a resident of Hardin county, and the action was brought in that county and appellant's line of railroad passed through that county. These facts are virtually conceded by both sides. Appellants contend that the personal residence of the appellee in Hardin county did not confer jurisdiction upon the circuit court of that county to try the action. Section 73 of the Civil Code provides: "An action against such carrier for an injury to a passenger, or to other person or his property, must be brought in the county in which the defendant, or either of several defendants, resides; or in which the plaintiff or his property is injured; or in which he resides, if he resided in a county into which the carrier passes." This section fixes three localities where such an action may be brought, namely, the county of defendant's residence, the county where the injury was done, and the county of the plaintiff's residence, if the carrier passes into that county. Manifestly, the personal representative is the only plaintiff in this action, and the only person who could have brought it, for by section 6 of the Kentucky Statutes of 1903 it is provided that the action to recover such damages shall be prosecuted by the personal representative of the deceased. Therefore, according to the letter of the statute, the residence of the personal representative is one of the places where the action may be brought. When the General Assembly enacted section 73 of the Code, it evidently had the convenience of all parties in mind. Therefore it allowed the plaintiff to sue at the home of the defendant, if he so desired, or go to the county where the injury was inflicted, and where it would probably best suit the convenience of the witnesses, or to his own home county, provided the carrier passed through such county. The purpose of this last clause was to place the jurisdiction convenient to the plaintiff, and yet not inconvenient to the defendant. The fact that plaintiff resided there would make it convenient for him, and the fact that the defendant passed through the county would insure that it would not be unreasonably inconvenient to it. There is reason in this provision, if the home of the personal representative, in cases of death, is referred to, because he is the one who must look after and prosecute the suit; but it is absurd if the residence of the deceased is referred to, for his convenience can no longer be consulted. He can have no connection with the trial of the action. Therefore we are of the opinion that the spirit as well as the letter of the law requires the construction contended for by appellee to be placed on this section. See the cases of Turner's Adm'r v. L. & N. R. Co., 62 S.W. 1025, 23 Ky. Law Rep. 340; L. & N. R. Co. v. Gilliam's Adm'r, 71 S.W. 863, 24 Ky. Law Rep. 1536, and Sherrill v. C., O. & S.W. R. Co., 89 Ky. 302, 12 S.W. 465.

The substance of the facts as they appear in the record is as follows: Appellee's intestate was employed by the appellant company in the capacity of engineer, and was placed in charge of the engine on one of its work trains. This train worked during the day at Rosine tunnel, and laid up at night at the town of Caneyville, where they had no yard master or yard hands. The crew of the work train consisted of the deceased; Eiffler, fireman; McCann, conductor; and Turner flagman. At night a watchman named Bell was placed at the engine, but, under the rules of the company, he could not move it. The tank of this engine became leaky, and on the morning of December 27, 1902, before the usual time to arise, Stith, Eiffler, McCann, and Turner were all aroused at their boarding house by Bell, who informed them that the water had leaked out of the tank and was low in the engine, and that something had to be done at once. They all dressed and went to the engine. Stith went into the tank to repair the leak, and came out with dry feet. The engine had become hot for lack of water, and was getting hotter all the time. There was no night operator at Caneyville, and it was too early for the day operator. No. 104, a fast passenger train going north, was past due, but had been running from one-half hour to four hours late, and they had no means of knowing when that train would pass. They all considered the question whether they should flag No. 104, and take the engine out on the main track to a water tank near by, and take water, or whether they should draw the fire from the fire box and let the engine die. They realized that one of these things must be done...