Jones v. Mobile & O.R. Co.

• Citation: 127 S.W. 144
• Parties: JONES v. MOBILE & O. R. CO.
• Decision Date: 19 April 1910
• Court: Court of Appeals of Kentucky

127 S.W. 144

JONES v. MOBILE & O. R. CO.

Court of Appeals of Kentucky.

April 19, 1910

Appeal from Circuit Court, Hickman County.

"Not to be officially reported."

Action by Edgar Jones, by his next friend, against the Mobile & Ohio Railroad Company. From a judgment dismissing the petition plaintiff appeals. Affirmed.

Shelbourne & Smith and R. L. Smith, for appellant.

Lansden & Lansden and E. T. Bullock, for appellee.

BARKER C.J.

The appellant (plaintiff below), Edgar Jones, a boy about 16 years of age, while stealing a ride on one of appellee's freight trains in the nighttime, fell off of the bumpers while the train was going some 20 or 25 miles an hour, and received severe bodily injuries. Alleging that his fall and consequent injuries resulted from his being kicked off of the bumpers by one of appellee's brakemen in charge of the train, this action was instituted to recover damages from the railroad company. The appellee (defendant below) denied all the allegations of the petition. Upon the trial of the issues thus raised the plaintiff testified that, at the time of his fall, he was stealing a ride upon defendant's train, and that while he was riding upon the bumpers between the cars one of the brakemen kicked him off, causing him to fall to the ground at a time when the train was running at a rate of some 20 or 25 miles an hour. He produced other testimony that he was found the next morning, injured, near the railroad track. For the defendant all of the employés in charge of the train denied the kicking of the boy from the bumpers, and testified positively that none of them saw him or knew that he was upon the train, or knew of his falling from it until long after the accident. The jury returned a verdict in favor of the defendant, and from a judgment predicated thereon, dismissing appellant's petition, he is here on appeal.

It is frankly admitted in the brief for appellant that the evidence was conflicting, and that the jury were warranted in finding for the company. The only complaint made here is of the instructions of the court. These are as follows: "(1) If the jury believe from the evidence that the defendant did willfully kick, knock, or push the plaintiff off of its rapidly moving train, and that he was thereby injured on his face, head, arms, or leg, the jury will find for the plaintiff such sum as will reasonably compensate the plaintiff for such injury, including any mental or physical pain or suffering which he endured, not exceeding, however the sum of $2,000. (2) The court further instructs the jury that the plaintiff was a...