Louisville & N.R. Co. v. Thornton

• Decision Date: 26 October 1900
• Citation: 58 S.W. 796
• Parties: LOUISVILLE & N. R. CO. v. THORNTON. [1]
• Court: Kentucky Court of Appeals

58 S.W. 796

LOUISVILLE & N. R. CO. v. THORNTON. ^[1]

Court of Appeals of Kentucky.

October 26, 1900

Appeal from circuit court, Campbell county.

"Not to be officially reported."

Action by James Thornton against the Louisville & Nashville Railroad Company to recover damages for personal injuries. Judgment for plaintiff, and defendant appeals. Reversed.

Wright & Anderson, B. D. Warfield, Edward W. Hines, and H. W. Bruce for appellant.

Abrey Barbour, Schroll & Barbour, Otto Wolf, and Nelson & Desha for appellee.

WHITE J.

The appellee, James Thornton, who sues by next friend, brought this action, seeking a recovery for injury received. The original petition charged appellant with negligence in running the train which injured appellee in excess of six miles an hour, the rate fixed by an ordinance properly pleaded, and also with negligence in not stopping the train in the city of Newport, and "carelessly and negligently failed to prevent, or attempt to prevent, this plaintiff from leaving said train while in motion," and by reason thereof he was injured, causing the loss of his left foot. A demurrer was sustained to this petition, and an amendment was filed pleading that the agents of appellant "knew that this plaintiff was about to jump from said train, as alleged in the petition herein; that the said servants and agents knew that the life and limb of this plaintiff would be endangered by his jumping from said train." A demurrer to the petition, as thus amended, was sustained, and a second amendment was filed, pleading "the agents of the said defendant knew that this plaintiff was about to jump from said moving train in time to have prevented him from jumping from said train. He says that, after said knowledge on the part of said servants and said agents of said defendant, said servants and said agents of said defendant negligently failed to prevent this plaintiff from jumping from said moving train." To the petition, as thus amended, the demurrer was overruled. The petition shows that appellee is 17 years of age, and was invited by the fireman to ride on this train (a freight train) from Milldale to the city of Newport. There is no allegation that appellee was a passenger on the train unless the allegation as to the invitation be treated as such, nor is it alleged that passengers were permitted to ride on this freight train. The answer of appellee is a complete denial of every fact pleaded in the petition charging negligence, and then pleaded that appellee was guilty of negligence in jumping from the freight train while in motion, and is thereby precluded from a recovery. The reply does not deny that appellee jumped from the train while in motion, but says that such action was not such that but for it the injury would not have occurred. The trial resulted in a verdict and judgment for $10,000, and, after a motion for a new trial had been overruled, this appeal is prosecuted.

On the trial the court gave instructions as follows: "The jury will find for the defendant, unless they believe from the evidence that those in charge of defendant's train saw or had reasonable grounds to believe, that plaintiff was about to jump off the moving train, in time to have prevented the accident to him, in which event they will find for the plaintiff." The theory upon...