Murray v. Chesapeake & O. Ry. Co. of Kentucky

• Decision Date: 02 February 1909
• Citation: 139 Ky. 379,115 S.W. 821
• Parties: MURRAY v. CHESAPEAKE & O. RY. CO. OF KENTUCKY et al.
• Court: Kentucky Court of Appeals

115 S.W. 821

139 Ky. 379

MURRAY v. CHESAPEAKE & O. RY. CO. OF KENTUCKY et al.

Court of Appeals of Kentucky.

February 2, 1909

Appeal from Circuit Court, Greenup County.

"Not to be officially reported."

Action by A. W. Murray, Sr., against the Chesapeake & Ohio Railway Company of Kentucky and another. From a judgment dismissing the petition, plaintiff appealed. Affirmed as to the defendant named, and reversed as to the other defendant, and remanded for further proceedings.

Allan D. Cole and W. T. Cole, for appellant.

W. D Wadsworth, LeWright Browning, Alex. P. Humphrey, and John T Shelby, for appellees.

CLAY C.

Plaintiff A. W. Murray, Sr., instituted this action against the defendants, Chesapeake & Ohio Railway Company of Kentucky and the Chesapeake & Ohio Railway Company, to recover damages for personal injuries. A demurrer was sustained to the petition, and the petition was dismissed. To test the validity of this ruling the plaintiff appeals.

The petition is as follows: "Plaintiff states that on or about June 1, 1906, the defendant the Chesapeake & Ohio Railway Company of Kentucky, a consolidated corporation composed of the Big Sandy Railroad Company, the Kinniconic &amp Freestone Railroad Company, and a consolidated company formerly known as Chesapeake & Ohio Railway Company of Kentucky, as its constituent corporations, was created, organized, and now exists under the laws of Kentucky; that said constituent corporation formerly known as Chesapeake & Ohio Railway Company of Kentucky was created and organized on or about July 1, 1904, and composed of the Maysville & Big Sandy Railroad Company, Lexington & Big Sandy Railroad Company, and the Covington Short Route Railway & Transfer Company; that the defendant the Chesapeake & Ohio Railway Company of Kentucky, as successor of the Maysville & Big Sandy Railroad Company and of said Chesapeake & Ohio Railway Company of Kentucky, does now and at all times herein mentioned since its creation has owned and held a line of railway running along the Ohio river from Covington, Ky. over and along Front street in the city of Maysville, Mason county, Ky. and through Greenup county, Ky. to the city of Ashland, Ky.; that under and by virtue of the corporate powers obtained through the charter of the said Maysville & Big Sandy Railroad Company the defendant the Chesapeake & Ohio Railway Company of Kentucky on or about July 1, 1906, entered into a contract or lease with its codefendant, the Chesapeake & Ohio Railway Company, a corporation created, organized, and existing under the laws of Virginia, to operate and manage for a term of years yet unexpired its said line of railway from Covington, Ky. through said counties of Mason and Greenup, to Ashland, Ky. and thereupon said Chesapeake & Ohio Railway Company, as lessee under said contract, took possession of said line of railway as operating agent, and has since said time been continuously in possession and control of and has operated said line of railway subject to the paramount authority of its lessor and codefendant, the Chesapeake & Ohio Railway of Kentucky. The plaintiff states that subsequent to the execution of said lease and prior to the injuries hereinafter mentioned the defendant the Chesapeake & Ohio Railway Company of Kentucky undertook, contrary to sections 203 and 211 of the Constitution of Kentucky, to convey all of its said tangible property by general warranty deed to its codefendant the Chesapeake & Ohio Railway Company, a Virginia corporation, but which deed of conveyance plaintiff avers is and was ultra vires, null, and void, and in no wise affects the relations between said corporations under said lease. Plaintiff states that on or about the ___ day of December, 1907, while he was upon the bridge crossing Little Sandy river in Greenup county, Ky. he was without fault on his part carelessly and negligently run into, upon, and against by the locomotive engine and train of cars of the defendant the Chesapeake & Ohio Railway Company, a Virginia corporation, whereby he was bruised and injured on and about his head, arms, legs, and body, and made to suffer great pain and agony of body and mind, was confined to his bed, and was prevented from doing any work for the space of eight weeks, and was put to the expense of $35 in his efforts to be cured of said injuries. Plaintiff states that the carelessness and negligence aforesaid was the joint and concurrent negligence of the said Chesapeake & Ohio Railway Company, its agents and servants, and the said Chesapeake & Ohio Railway Company of Kentucky, its agents and servants, defendants herein. Plaintiff states that his said injuries were caused by the negligence and carelessness of the defendant, its agents and servants, in carelessly and negligently operating said train and cars attached thereto, and that by reason thereof he has been damaged in the sum of $5,000. Wherefore plaintiff prays judgment against the defendants, the Chesapeake & Ohio Railway Company of Kentucky and the Chesapeake & Ohio Railway Company, in the sum of $5,000, and all proper...