Luton Min. Co. v. Louisville & N.R. Co.
Decision Date | 16 December 1938 |
Parties | LUTON MINING CO. v. LOUISVILLE & N. R. CO. |
Court | Kentucky Court of Appeals |
Appeal from Circuit Court, Webster County.
Action by the Louisville & Nashville Railroad Company against the Luton Mining Company to recover a sum of money paid in compromising a claim for the death of a brakeman employed by plaintiff. From a judgment for plaintiff, defendant appeals.
Affirmed.
Gordon Gordon & Moore, Abner Johnston, Jr., and E. M. Nichols, all of Madisonville, for appellant.
Withers & Lisman, of Dixon, and J. P. Hamilton, J. Miller White Ashby M. Warren, and H. T. Lively, all of Louisville, for appellee.
The trial judge in this case handed down a written opinion containing a finding of law and facts. The facts as contained in this finding appear to us to be so correctly, aptly and concisely stated that we have determined to adopt his finding as the statement of facts for the purpose of this opinion. It is as follows:
Pursuant to the finding of facts, the trial court found as a matter of law that appellant was liable to appellee for the amount so paid in compromising this claim and judgment was rendered in favor of appellee against appellant for $5,680; from that judgment this appeal is prosecuted. Appellant contends (1) that the lower court erred in overruling its demurrer to the petition; (2) that the alleged contract was without consideration and unilateral; that it was also discriminatory against it and was obtained by coercion on the part of the Director General of Railroads; (3) that there was no liability on the part of appellee to Jagoe's administratrix under the facts of the case and therefore no liability on the part of appellant to appellee; that the railroad company was a volunteer in making this settlement and that the settlement was not made in good faith. We will discuss these propositions in order.
1. Appellant argues vehemently that the petition did not state a cause of action against it by reason of the failure of the petition to allege that the switch track covered by the contract between it and appellant was ever built pursuant to this contract. This alleged defect in the petition is so insistently argued by appellant on account of the fact that it claims there is no actual liability on its part to the railroad company on the merits because of the change and extension of the switch track referred to in paragraph 3 of the finding of facts above set out, it being appellant's contention that as the switch track was not the same as that described in the contract and blueprint attached thereto, and as the accident to Jagoe occurred at a point on the switch track which was not a part of the original switch track described in the contract, there can be no liability on its part to the railroad company.
We are unable to agree with appellant in this contention. The petition as amended alleged that the injury to Jagoe occurred on the switch track of the mining company and further alleged that the mining company had constructed another track diverging from its load track and running to its tipple. The substitution for the second amended petition sets out fully the facts with reference to the changes in the switch track and, in addition thereto, the mining company alleged in its answer that the switch track mentioned in the contract was constructed in the year 1918. We regard these changes made by the mining company in the switch track as immaterial insofar as any effect these changes might have on the question of liability here presented. The changes, as indicated in the finding of facts above, merely extended the switch track some distance further than the original track and the parties apparently continued to operate under the contract. These changes were effected by the mining company for its own benefit, probably without the knowledge of the railroad company, and no notice was ever given to the railroad company, that the mining...
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