Louisville & N.R. Co. v. Scott's Adm'r

• Decision Date: 02 May 1900
• Citation: 108 Ky. 392,56 S.W. 674
• Parties: LOUISVILLE & N. R. CO. v. SCOTT'S ADM'R. [1]
• Court: Kentucky Court of Appeals

56 S.W. 674

108 Ky. 392

LOUISVILLE & N. R. CO. v. SCOTT'S ADM'R. ^[1]

Court of Appeals of Kentucky.

May 2, 1900

Appeal from circuit court, Lincoln county.

"To be officially reported."

Action by B. F. Scott's administrator against the Louisville &amp Nashville Railroad Company to recover damages for the death of plaintiff's intestate. Judgment for plaintiff, and defendant appeals. Affirmed.

J. W Alcorn, Edward W. Hines, and Breckinridge & Shelby, for appellant.

W. G Welch, for appellee.

PAYNTER J.

On June 16, 1896, by the accidental derailment, at Rowland, Ky. of a train of the appellant, B. F. Scott was killed. The train consisted of a combination car and passenger coach. The passenger coach had an apartment for ladies in one end, and the other end of which was a smoker. The other car was for baggage and for colored passengers. This train left Stanford at 4 o'clock p. m., passing through Rowland for Richmond which returned at 9:10 p. m., and in five minutes thereafter left for Stanford, a mile distant from Rowland. It had reached a point about 250 yards from the depot, when it collided with a cow, which caused the derailment of the front coach, the train backing from Rowland to Stanford. Scott got on the train at Rowland, went to Richmond, returned on the train, remained on it at Rowland, and was on it when the accident occurred. About the time the train left the station, he was in the car next to the engine, and no one seems to have seen him leave it. After the accident he was discovered under the front bolster, near the center of the front car, the car next to the engine not being derailed. The evidence does not explain how he got out of the car, but the theory of the plaintiff is that when the cow was struck he ran to the front end of the car, and was thrown therefrom, as were the conductor and brakeman. When the car started for Stanford, the conductor and a brakeman assumed their accustomed position on the front end of the car approaching Stanford, where there was an attachment which would enable them to operate the air brake on the train, and there was also a small whistle, which they used to give warning of the approach of the train at crossings. They carried lanterns, which cast a light not more than five feet in front of the train, which seemed to have been of but little assistance in discovering an object upon the track. There was no pilot on the car, or headlight. Neither was the platform upon which they stood surrounded entirely by railing, there being openings which were not covered by the railing or protected by chains. The train was running from six to eight miles per hour at the time of the accident. The collision derailed the front car, which ran to a point so that the rear end of the derailed coach was 105 feet from the point where the collision took place. Scott's sister was the station agent at Rowland, but he performed the duties of the position for her, she drawing the salary, and paying it to him. He began his work at 6:30 a. m., and ceased at about 4:30 p. m. In the discharge of his duties as station agent he was not required to make the trip to Richmond and return on this train. He lived at Stanford.

On the trial of the case the conductor was asked in what capacity Scott was traveling on the train, and he answered "as passenger." The defense objected to this and offered to prove by the witness that Scott did not pay his fare; that he did not have a ticket or pass on the road; that he was traveling by the courtesy and permission of the conductor; that the conductor was doing this in violation of the rules of the company. The court refused to permit this testimony to be offered, and proceeded to try the case upon the theory that Scott was a passenger on the train. We will assume, for the purpose of this case, that these facts, which were offered to be proven by the company, are true, and were proven. If these facts had been proven, it would not have deprived decedent of the character of passenger, for it is universally agreed that the payment of fare or price of carriage is not necessary to constitute one a passenger, or to give rise to a liability upon the part of the carrier. Hutch. Carr. § 565; Wood, R. R. (Minor's Ed.) p. 1214. Although the conductor may have been violating a rule of the company to carry the decedent without fare, still that fact could not deprive him of the character of passenger, or relieve the company of the duty imposed upon it as to passengers. In this case it was not proven, nor did it offer to prove, that the decedent tried to practice a fraud upon it to obtain passage on the train. The conductor was in charge of the train, and by his courtesy and permission the decedent was carried, and was entitled to receive the care which the law imposes on a carrier of passengers. Thomp. Carr. Pass. p. 44, says: "The simple fact that an agent of the carrier violates his duty, and invites a person to...