Louisville & N.R. Co. v. Harvey

• Decision Date: 25 March 1896
• Parties: LOUISVILLE & N. R. CO. v. HARVEY.
• Court: Kentucky Court of Appeals

34 S.W. 1069

99 Ky. 157

LOUISVILLE & N. R. CO. v. HARVEY.

Court of Appeals of Kentucky.

March 25, 1896

Appeal from circuit court, Warren county.

"Not to be officially reported."

Action by L. K. Harvey against the Louisville & Nashville Railroad Company to recover wages alleged to be due plaintiff as a railroad brakeman. From a judgment for plaintiff, defendant appeals. Reversed.

J. A Mitchell, H. W. Bruce, and Wm. Lindsay, for appellant.

Edward W. Hines, Sims & Covington, W. T. Cox, and H. B. Hines, for appellee.

LEWIS J.

L. K Harvey brought this action to recover of Louisville &amp Nashville Railroad Company $112, amount of wages alleged to be due him as railroad brakeman for the months of August and September, 1890, at the rate of $56 per month. Subsequently he filed an amended petition, asking judgment for the additional sum of $224, amount of wages at same rate for four succeeding months; and from the judgment following verdict of the jury for $150, defendant has appealed.

At the trial, defendant asked the court to instruct the jury peremptorily to find for it; and refusal of that instruction involves an inquiry whether the facts stated in the petition and amended petition constitute a cause of action. We quote so much of the petition as is pertinent: "Plaintiff further says that, in the month of July, 1890, the defendant employed him as a railroad freight brakeman for them; that said contract of employment was made by this plaintiff and a duly-authorized agent of said defendant company; that, under said contract, it is and was the duty of this plaintiff to work for the said defendant, as railroad freight brakeman. Plaintiff says that the defendant agreed and promised to pay him, for his said services, as set out above, the regular or usual wages allowed all men employed as freight brakemen, which was at the rate of $_____ per trip, making an average of $_____ per month. Plaintiff says that, for the first month of his services, to wit, the month of July, the defendant paid him the sum of $70.80, but has never paid, and now refuses to pay, him his wages, or any part thereof, for the months of August or September, although the wages for the two months just past are now overdue, and have been demanded by him. Plaintiff says that he is still in the employ of defendant company under his contract with them, and has never been discharged from their service, and has been at all times, and is now, ready, when called upon, to perform his work,...