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

Decision Date08 January 1913
Citation152 S.W. 270,151 Ky. 409
CourtKentucky Court of Appeals

Appeal from Circuit Court, Knox County.

Action by James Tuggle's administrator against the Louisville &amp Nashville Railroad Company. From a judgment for plaintiff defendant appeals. Affirmed.

James D. Black, of Barbourville, J. W. Alcorn, of Stanford, and Benjamin D. Warfield, of Louisville, for appellant.

B. B Golden, of Barbourville, Brown & Nuckols, of Frankfort, and J. D. Tuggle, of Barbourville, for appellee.


While in Middlesboro on Saturday, August 16, 1908, James Tuggle became intoxicated to such an extent that he was unable to know what he was doing, or to take care of himself. He had a basket and two jugs. While in this condition he was found by a friend, George Goodin, who paid for his supper, and cared for him until about 10 o'clock at night. Tuggle lived near Barbourville; and, as he desired to go home, Goodin and Barker escorted him to the station in order that he might take the appellant's 10 o'clock north-bound passenger train for Barbourville. Barker took care of Tuggle, while Goodin bought him a ticket from Middlesboro to Barbourville. The two men then placed Tuggle in the smoking car, where they left him with his basket and jugs after Goodin had put the ticket in Tuggle's coat pocket. Shortly after the train left Middlesboro, the conductor asked Tuggle for his ticket which he was unable to find; and, as the train was crowded, the conductor continued taking tickets, and directed the brakeman either to get Tuggle's ticket, or collect his fare. The brakeman succeeded in collecting from Tuggle his fare from Middlesboro to Pineville, the next principal town; but, when the train reached Pineville at about 10:45 o'clock, Tuggle remained in the car. Shortly after the train left Pineville, the conductor and brakeman stopped the train at about 11 o'clock at night, and ejected Tuggle for his failure to pay his fare. The appellant contends that Tuggle was put off the train at Wall's End, which is a regular station on its road, about one mile north or west of Pineville; while appellee contends that Tuggle was put off at a footway crossing, some 400 or 500 yards south of Wall's End, and before the train reached that point. About two hours later Tuggle's dead body was found upon the track about 16 steps north of the road or footpath crossing above referred to. He had been struck and killed by appellant's freight train which passed that point an hour after he had been ejected from the passenger train. The station at Wall's End is elevated somewhat above the county road, which is some 15 or 20 feet distant from the railroad track, and runs substantially parallel with it; while the footpath crossing the track near where Tuggle's body was found is somewhat steeper. Upon a trial of the case Tuggle's administrator recovered a verdict and judgment for $9,000, and the defendant appeals.

In the first place, appellant insists that it was entitled to a peremptory instruction, or, that having been denied, to a judgment notwithstanding the verdict, because appellee failed to traverse appellant's plea of contributory negligence, as set up in its amended answer. The original petition was couched in general terms, and charged the appellant's conductor and brakeman with having carelessly and negligently ejected Tuggle from the train while he was in such a drunken and stupefied condition as to be incapable, mentally or physically, of caring for or protecting himself; that they left him alone while in that condition at a point between Pineville and Wall's End, and that he was thereby run over and killed by the train from which he was ejected, or by another train owned and operated by the defendant, but that plaintiff did not know which of said trains caused his death. The original answer traversed the allegations of the petition, and affirmatively alleged that the conductor put Tuggle off at Wall's End, which was a regular station on defendant's line of railroad, for his failure to pay his fare, and that, after so putting him off, "they left him at said station, and where he was within reach of proper attention, if he needed such attention." The answer contains this further allegation: "But it alleges that, after he was so left at said station, he wrongfully, carelessly, and negligently left said station and went back up the track on the line of defendant's railroad, and while he was on said track and away from said station he was run over and killed by a following train, and that his presence upon the track was not discovered by the persons in charge of said train, and that he was therefore unavoidably run over and killed by said train."

The original reply specifically traversed the allegations of the answer just quoted. Subsequently, however, the plaintiff amended his petition, and stated that the place where Tuggle was killed was within the corporate limits of the city of Pineville, and was at a point where there was, and for years had been, a regular passageway for persons living in the corporate limits of said city, and that by reason of said passageway, and its use by the inhabitants of Pineville, the defendant owed Tuggle a lookout duty, and that he came to his death by its failure to perform that duty. By a second amended petition, plaintiff alleged that defendant's employés ejected Tuggle from its train with force and violence upon a high fill and embankment at the foot of which on either side of said railroad there was a high barbed wire fence, which made it a dangerous place to leave Tuggle unattended as they did. Evidently this second amended petition was based upon plaintiff's theory that Tuggle was ejected at the footway crossing, and not at Wall's End. In its answer defendant traversed the allegations of the amended petition, and affirmatively pleaded contributory negligence upon the part of Tuggle in a third paragraph. The amended reply traversed the first and second allegations of this amended answer, but failed to notice the third paragraph above referred to, which contained the plea of contributory negligence. It will thus be seen that the pleadings presented two theories of the case: (1) That of the plaintiff, that Tuggle had been ejected at the footway crossing, which was higher and more dangerous than the station at Wall's End; and (2) the theory of the defendant that Tuggle had been ejected at Wall's End which was a regular station on the defendant's road, that he had wandered back up the track, and had been killed by a following freight train while near the footway crossing some 500 yards south of Wall's End station.

Appellant rests its contention that it was entitled to a peremptory instruction upon the line of cases represented by Louisville Railway Co. v. Hibbitt, 139 Ky. 43, 129 S.W. 319, 139 Am.St.Rep. 464, which holds that, when a plea of contributory negligence is not traversed, the negligence stands confessed, and the defendant is entitled to a peremptory instruction requiring the jury to find for the defendant. In the case at bar, appellant not only raised the question by moving for a peremptory instruction at the close of the evidence, but further moved for a judgment notwithstanding the verdict before the judgment for plaintiff was entered. This case, however, is not to be controlled by the principle announced in the Hibbitt Case, for while the amended answer did interpose a formal plea of contributory negligence, which was not traversed, the case was actually tried upon the issues presented by the original petition and answer, and according to appellant's theory of the case. The subsequent pleadings were evidently filed on account of plaintiff's inability to ascertain the exact facts of the case; but, under the evidence, the case was tried solely under the original petition and answer. And, as the allegation of the answer which set forth the facts of contributory negligence upon Tuggle's part were specifically denied, the rule announced in the Hibbitt Case is not applicable here.

Furthermore if we should take appellant's view that it was entitled to a peremptory instruction because its plea of contributory negligence, as found in the third paragraph of its amended answer, was not traversed, appellant's case is no stronger, because, after the case had been tried and submitted to the jury, and before the jury had found a verdict, appellee tendered, and the court filed, an amended rejoinder formally traversing the allegation of contributory negligence. Appellant contends, however, that this pleading came too late and should not have been filed, but that, the court having permitted this amendment to be filed over appellant's objection, it should have sustained appellant's motion to discharge the jury and continue the case, and that its failure to so rule is a reversible error. The discretion of the court in filing pleadings during the trial of a case is a broad one, and, unless that discretion has been abused, this court will not reverse upon that ground, and, if the appellant was not prejudiced by the ruling, the circuit court did not abuse its discretion, since injury must be the test in such cases. In the case at bar the parties had introduced all of their evidence, as though the issue of contributory negligence had been fully made, and, when appellant made its motion to discharge the jury and continue the case, it was the court's duty to overrule said motion, unless the filing of the amended rejoinder, joining issue as to the contributory negligence, prejudiced the appellant. There is no claim of surprise or inability on appellant's part to present its case under the issue thus made; on the contrary, the issue had been tried as if the amended rejoinder had been filed...

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