Koke's Admr. v. Andrews Steel Company
| Decision Date | 03 October 1912 |
| Parties | Koke's Admr. v. Andrews Steel Company. |
| Court | Kentucky Court of Appeals |
Appeal from Campbell Circuit Court.
F. J. HANLON, BEN BEIDEWHORN, JR., for appellant.
FRANK V. BENTON, L. J. CRAWFORD and WHITE & SCHINDEL for appellee.
Herbert Koke, a boy about fifteen years old was killed while in the service of the Andrews Steel Company and this suit was brought to recoved for his death. On the trial of the case the plaintiff offered to file an amended petition. The defendant objected on the ground that it set up a different ground of recovery from that asserted in the original petition. The circuit court refused to allow the amended petition to be filed. The case was then tried and at the conclusion of the plaintiff's evidence the court instructed the jury peremptorily to find for the defendant and the plaintiff's petition having been dismissed he appeals:
It is insisted that the court erred in refusing to allow the amended petition to be filed but the amended petition is not made a part of the record by an order of the court or by bill of exceptions. It cannot, therefore, be considered on the appeal although copied into the record. (Hortsman v. C. & L. R. R. Co., 18 B. M. 218; Stafford v. Dyer, 19 Rep., 155; Krish v. Ky. Jeans Co., 31 R., 436.)
The facts shown by the plaintiff, on the trial were these:
Herbert Koke was a furnace boy; that is, it was his duty to open the door of the furnace. The Andrews Steel Company had running through its plant two railroad tracks and on these tracks it operated a locomotive. On the opposite side of the tracks from the furnace was a water closet which was used by the employes at the furnace. At the time in question there were seven or eight cars standing on one of these tracks. The tracks were not straight, but curved, and as the engine came up to the cars the engineer could not see around the curve or see the lower end of the cut of cars. The engineer and fireman testified that they came in on the track with the locomotive for the purpose of coupling to the front car. They had with them a switchman, Hargreaves, on the front of the tender. When they got up near the front car Hargreaves got off the engine and at a signal from him they backed the engine up to that car and coupled to it. Hargreaves then walked down by the side of the cars and the engineer waited there for a signal but Hargreaves gave them no signal and a few minutes later a boy came along and told them that young Koke was hurt. Albert Hargreaves testified that the cars standing on the track were uncoupled from each other and when they made the coupling to the first car the other cars bumped apart. The first he saw of Koke he was leaning against an old shanty beside the space between the third and fourth cars groaning and in great agony. He tried to speak but could not. He picked him up and carried him a short distance where he met Chas. Higginbotham, the yard foreman, who took Koke to the office. The shanty that Koke was leaning against was near the water closet. Higginbotham testified that half an hour before this he had noticed there was a space of about ten feet between the two cars near the water closet and that he did not notice whether the space was still there after Koke was hurt. The injury upon Koke's body consisted of a bruise upon the abdomen in front and on the back just opposite, about as high from the ground, if he was standing straight, as the bumpers on two freight cars. Koke died in a few hours, from his injuries. This is the sum of the testimony.
It is insisted for the plaintiff that Koke was passing from the water closet to his place of work just as the cars bumped together and was caught between the bumpers....
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