McQuary v. Louisville & N.R. Co.

• Decision Date: 26 May 1910
• Parties: McQUARY v. LOUISVILLE & N. R. CO.
• Court: Kentucky Court of Appeals

128 S.W. 329

McQUARY v. LOUISVILLE & N. R. CO.

Court of Appeals of Kentucky.

May 26, 1910

Appeal from Circuit Court, Henderson County.

"Not to be officially reported."

Action by James McQuary against the Louisville & Nashville Railroad Company. From a judgment sustaining a demurrer to plaintiff's amended petition, plaintiff appeals. Affirmed.

J. C Worsham, for appellant.

Benjamin D. Warfield and Yeaman & Yeaman, for appellee.

CLAY C.

James McQuary, suing through his guardian, brought this action against appellee, Louisville & Nashville Railroad Company, to recover damages for personal injuries. A demurrer was sustained to the petition and the petition as amended. Upon appellant's declining to plead further, the court entered judgment dismissing his petition as amended. From that judgment this appeal is prosecuted.

It will be necessary only to set out the petition as amended, as the amendment discloses more fully the facts upon which appellant relies. That part of the amended petition which is material is as follows: "That the defendant maintains a switchyard on Fourth street in the city of Henderson, Ky extending eastward on said Fourth street from the intersection of Ingram and Fourth streets across Adams Alves, and Alvasia streets, and beyond, which said switchyard about evenly divides the northern from the southern portion of said city. He further states that there is a regular passway through said yard which for many years past has been daily used by many persons going to and from the mills and factories and the Union Depot in the eastern part of said city, and to other parts thereof, by and with the knowledge and consent of the defendant, and said switchyard and said passway therein were being so used at the time of the acts of the defendant hereinafter complained of, and had been so used by plaintiff. Plaintiff further states that on or about the ___ day of ___ the defendant erected a wall or bridge approach along and through its said switchyard, extending from the intersection of Fourth and Water streets along Fourth street, through its said yard, across Main, Elm Green, Ingram, Adams, Alves, and Alvasia streets; and that said wall was so built as to close Adams, Alves, and Alvasia streets at the points of their intersection with said Fourth street. Plaintiff says that since the erection of said wall or bridge approach and the closing of said Adams, Alves, and Alvasia streets thereby, many persons living in the northern part of said city have daily used said yard as a passway in going to and from the northern to the eastern and southern portions of said city; and plaintiff states that there is a well-defined pathway leading to, across, and from defendant's said wall or bridge approach at or near the intersection of the said Alvasia and Fourth streets, and that said pathway is daily used by many persons in going to and from one part of said city to another, and was being so used at the time of the acts of the defendant hereinafter complained of. Plaintiff further states that on or about the 25th day of March, 1909, he was picking up coal from under a car in de...