Louisville & N. R. R. Co. v. Willis

• Decision Date: 07 May 1885
• Citation: 6 Ky.L.Rptr. 784,83 Ky. 57
• Parties: L. & N. R. R. Co. v. Willis.
• Court: Kentucky Court of Appeals

83 Ky. 57

6 Ky.L.Rptr. 784

L. & N. R. R. Co. v. Willis.

Court of Appeals of Kentucky.

May 7, 1885

APPEAL FROM SHELBY CIRCUIT COURT.

W LINDSAY FOR APPELLANT.

1. As the appellant did not hire the appellee's son and was guilty of no neglect, it is not liable for an injury resulting to the boy from his voluntary attempt to render a personal service to the company's conductor.

2. As the injured boy was not an infant of tender years, the extreme rule contended for by counsel for appellee does not apply.

L. A WEAKLEY ON SAME SIDE.

There is no evidence that appellant employed appellee's son, as neither the company nor its conductor exercised any control over him, or claimed any interest in him or his services. (R. R. Co. v. Kidd, 7 Dana, 245; Bosworth v Brand, 1 Dana. 377.) And unless the appellant employed the boy, his father can not recover.

L. C WILLIS FOR APPELLEE.

Brief withdrawn.

OPINION

HOLT JUDGE:

The appellee, W. J. Willis, recovered a judgment in the lower court for five hundred dollars for trouble and expense in caring for his son and the loss of his service, arising from an injury to him while engaged in coupling the cars of the appellant.

The father bases his right to recover upon the fact that his son was under age, and that the appellant, without his knowledge or consent, employed and permitted the son to render service for it in the hazardous capacity of brakeman.

The answer denies the allegations of the petition, and alleges affirmatively, among other matters, that the injury resulted solely from the son's negligence.

If this statement were material, yet it is denied, because the order filing the answer recites that, by consent, its affirmative statements are traversed.

It appears that the son had, prior to the date of the injury, been in the employ of the appellant for wages, but had been discharged; and that when the injury was received he was voluntarily acting as brakeman, by the request or at the instance of the conductor in charge of the train.

It consisted of sixteen cars, and had but one brakeman, beside the son, upon it, although, according to the testimony, at least three were necessary or usual; and, although the conductor testifies that he did not know when or where the son boarded the train, yet it is quite evident that he, as appellant's general agent for all purposes relating to the running of it, knew, long before the accident occurred that the son...