Newport News & M.V. Ry. Co. v. Carroll

• Decision Date: 22 May 1895
• Citation: 31 S.W. 132
• Parties: NEWPORT NEWS & M. V. RY. CO. v. CARROLL.
• Court: Kentucky Court of Appeals

31 S.W. 132

NEWPORT NEWS & M. V. RY. CO. v. CARROLL.

Court of Appeals of Kentucky.

May 22, 1895

Appeal from circuit court, Grayson county.

"Not to be officially reported."

Action by Ellen Carroll against the Newport News & M. V. Railway Company for injuries to a minor son. From a judgment for plaintiff, defendant appeals. Affirmed.

G. W Stone and P. H. Darby, for appellant.

E. D Walker and J. F. Hobson, for appellee.

GUFFY J.

This action was instituted in the Grayson circuit court by the appellee, Ellen Carroll, etc., against the appellant, to recover for injuries, etc., sustained by her minor son, Ed Smith, while employed, as she alleged, by the defendant, without her consent. It was claimed in the petition that the defendant employed and directed said Smith to couple certain of its freight cars, and while engaged in so doing Smith's arm was caught between the cars, and severely and permanently injured, thereby causing the appellee to incur expense, and labor in attending to and caring for her son, and also depriving her of the benefit of his services. Appellant denied the employment. It appears from the evidence that one of appellant's freight trains has stopped at Careyville, and it was desirable for some reason to take out of the train two cars, and place the same on a side track, on which one car was already standing; that while the same was being done the said Smith, who happened to be present, coupled, or attempted to couple, the car to the one already on the side track, and while so acting was injured. The testimony is that the conductor told him to couple the cars, and in obedience to said order or request he essayed to do so, and was caught between the bumpers, and severely and permanently injured. The conductor testified that he did not request or order Smith to do the work, and really did not desire the cars to be coupled. A trial resulted in a judgment in plaintiff's favor for $480. Appellant's motion for a new trial having been overruled, it has appealed.

Several grounds were relied on on the motion for a new trial. Appellant insists that the court ought to have given the peremptory instruction asked for at the conclusion of plaintiff's testimony, and also again asked at the conclusion of all the evidence; also that the court erred in giving and refusing instructions and admitting evidence. If the testimony introduced by the plaintiff was true, the verdict of the jury is...