Payne v. Ramsey

• Decision Date: 02 June 1922
• Citation: Payne v. Ramsey, 242 S.W. 5, 195 Ky. 117 (Ky. Ct. App. 1922)
• Parties: PAYNE, AGENT, v. RAMSEY.
• Court: Kentucky Court of Appeals

242 S.W. 5

195 Ky. 117

PAYNE, AGENT, v. RAMSEY.

Court of Appeals of Kentucky.

June 2, 1922

Appeal from Circuit Court, McCreary County.

Action by James Ramsey against John Barton Payne, as Agent. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Tye &amp Siler, of Williamsburg, and John Galvin and Edward Colston both of Cincinnati, Ohio, for appellant.

H. C Gillis, of Williamsburg, and H. M. Cline, of Whitley City for appellee.

MOORMAN J.

Appellee recovered a judgment in the McCreary circuit court for $250 damages against appellant for injuries sustained on the 24th day of January, 1918. An appeal is asked on the ground that the lower court should have directed the jury to return a verdict for the Director General at the conclusion of the plaintiff's evidence.

There was but one witness, the plaintiff, who testified that he was employed by the United States government to carry mail bags and place them upon the mail crane beside the track of the Cincinnati, New Orleans & Texas Pacific Railway Company at Pine Knot. He had been engaged in this service several months prior to November, 1917, at which time the right of way was fenced on both sides and a cattle guard placed at the end of the fences. After that time, according to his testimony, it was necessary for him to cross the cattle guard in going to and returning from the mail crane. This he did twice a day until the date of the accident. There were snow and ice on the cattle guard at the time of the accident, and in attempting to walk across it he fell and injured one of his legs. He claims that the negligence of appellant consisted in failing to furnish him a better route to the mail crane, and also in failing to remove the snow and ice from the cattle guard.

There are two grounds on which the judgment must be reversed. The first is that the suit was brought against the Cincinnati New Orleans & Texas Pacific Railway Company, and proceeded against that company until the plaintiff filed a reply, at which time he changed the style of the action from James Ramsey v. Cincinnati, New Orleans & Texas Pacific Railway Company to James Ramsey v. John Barton Payne, Director General of Railroads, as Agent. Thereafter the action proceeded in the style indicated in the reply, but no order was entered substituting the Director General for the railway company, and a judgment was rendered against the Director General, who had not been sued, and who was not a party to the proceeding in any way, other than as we have stated. When the accident happened, the property of the Cincinnati, New Orleans & Texas Pacific Railway Company was in the possession and under the control of the federal government, operated by the Director General of Railroads. A judgment could not be rendered against the Director General in a suit brought against the railway company, and in which the Director General had never been substituted for the railway company or formally made a party to the proceeding. Commonwealth v. L. & N. R. Co., 189 Ky. 309, 224 S.W. 847, 11 A.L.R. 1446; Rutherford v. Union...