Smith v. Baltimore & O.R. Co.

• Decision Date: 23 January 1914
• Citation: 162 S.W. 564,157 Ky. 113
• Parties: SMITH v. BALTIMORE & O. R. CO.
• Court: Kentucky Court of Appeals

162 S.W. 564

157 Ky. 113

SMITH v. BALTIMORE & O. R. CO.

Court of Appeals of Kentucky.

January 23, 1914

Appeal from Circuit Court, Jefferson County, Common Pleas Branch Second Division.

Action by James H. Smith against the Baltimore & Ohio Railroad Company. From a judgment dismissing the petition, plaintiff appeals. Reversed and remanded for further proceedings.

Samuel L. Trusty, Eugene Hubbard, and Popham, Trusty & Roose, all of Louisville, for appellant.

Gibson & Crawford, of Louisville, for appellee.

CLAY C.

Plaintiff James H. Smith, brought this action against the defendant Baltimore & Ohio Railroad Company, to recover damages for personal injury. In his petition, which was filed on March 18, 1911, he alleges, in substance, that he is a resident of Green county, Ky. and that the defendant is and was, at the time of the injury complained of, a corporation organized under the laws of the states of Maryland and Virginia, and that it owned and operated passenger and freight trains over and upon its various lines of railroad in the states of Maryland, Virginia, Pennsylvania, and elsewhere for the transportation of passengers and freight for hire. At the time plaintiff was injured it operated passenger and freight trains between the cities of Lavenia and Layton, Pa Plaintiff was then employed by defendant as a telegraph operator at Lavenia, Pa., and was boarding at Layton, a point four miles distant from Lavenia. He was ordered by defendant's agents superior in authority to him to catch a train at Layton for Lavenia on March 29, 1909. Defendant issued to him a pass entitling him to ride from Layton to Lavenia. On the occasion of the accident he undertook to board one of defendant's trains between Layton and Lavenia for the purpose of going to Lavenia. As he took hold of the handhold of the car for the purpose of taking passage on the train, the handhold suddenly, without warning, gave way, and he was thrown beneath the freight train and badly injured. It is alleged that his injuries were caused and brought about by the gross negligence of the defendant, its agents and servants superior in authority to plaintiff, in providing for the car a handhold that was defective inadequate, unsafe, and dangerous for the purpose for which it was used. It is also alleged that the defective and dangerous condition of the handhold was known to the defendant, its agents or employés, or could have been known to them by the exercise of ordinary care, and that it was not known to plaintiff, and could not have been known to him by the exercise of ordinary care. Among other defenses, the defendant pleaded the oneyear statute of limitations applicable to personal injury cases. Replying to this plea, plaintiff alleged that at the time of his injury he was a resident of the state of Pennsylvania; that the defendant, Baltimore & Ohio Railroad Company, was a corporation doing business in the state of Pennsylvania with a situs therein; that at the time of the filing of the reply it had no situs in the state of Kentucky, and was not doing business in that state, nor did it have a situs in that state at the time he received his injuries. It is further alleged that when he received his injuries plaintiff was in the employ of the defendant company. The said contract of employment was made in the state of Pennsylvania. The services which he rendered the defendant were performed in the state of Pennsylvania, and the contract under which the services were performed was made in Pennsylvania; that the pass that was issued to him, and the contract to carry him to and from his work, was made, issued, and delivered to him in the state of Pennsylvania; and that while carrying out the orders of the defendant in the state of Pennsylvania under said contract of employment, and while in the performance of the duties assigned him by and through and under said contract of employment, and while he was in the act of boarding defendant's train and becoming a passenger thereon in...