111 Ky. 30 | Ky. Ct. App. | 1901
Reversing.
The plaintiff, J. P. Waldron, administrator of Solon Fagg, deceased, instituted this suit against the appellee to recover damages for the alleged negligent killing of the intestate. The question here for review is the -action of the court in sustaining a demurrer to the- petition as amended, and in dismissing it upon appellant’s failure to plead further. It is in two paragraphs-, but, in our opinion, it was not necessary or proper to thus paragraph-it. If it is good-, it simply states -one cause of action; that is, the appellee’s negligent killing of the appellant’s intestate, which resulted in damage to the estate of the intestate. Because there may have been one or more- acts of negligence which produced the injury resulting in death does not make it proper, in stating the cause of action, to do so in as many paragraphs as there may have been acts of negligence which separately or collectively produced the injury. So, in stating the averments of the petition, we will do so as though it was not paragraphed. It is averred that there is a deep cut upon the defendant’s roadbed in the city -of Franklin, immediately north of defendant’s north switch; that upon a night in December, 1898, the decedent, -Solon Fagg, was in a drunken and helpless condition, and at about eight o’clock upon that night, while in that condition, boarded the north-bound freight train in the cut; that the night was dark and rainy; that the agents- and servants of defendant in charge of the freight train knew the drunken and helpless condition of the decedent; that they knew that other trains of the defendant-would shortly pass through the cut, yet they then and- there negligently and wrongfully ejected him from the train; that it was natural and probable that death or great bodily harm would be
The (principle which underlies the ¡doctrine enunciated in Railroad Co. v. Sullivan, 81 Ky., 624 (5 R. 722) (50 Am. Rep., 186), and Railroad Co. v. Ellis’ Adm’r, 97 Ky., 330 (17 R. 259) (30 S. W., 979), is applicable • to the facts of this case. Sullivan was drunk, and failed to pay his fare on demand, and' was removed while in a drunken ■ condition, in a deep snow, and fell and laid in it until he was badly frozen, entailing the loss ■of some toes, fingers, and part of his heel. The court held that the railroad company was liable for the injury resulting, to1 him under the circumstances detailed. In the Ellis case, the removal took place when he was drunk and in a cut in the road, on either side of which was a wire fence, and the court held that if the natural and probable result of his removal, under such circumstances was that he would be killed by trains that would subsequently follow, then the company was liable. In condemning an instruction in that case which assumed the agents of the railroad company had the right to eject a' trespasser, regardless of the time, place, and circumstances and his physical and mental condition, the court said: “It seems to us that the ordinary principles which characterize humanity condemn such claim. If the claim of appellant be true, that the decedent was ejected in a cut, away from any station, with banks and fences on either side of the track, in such mental or physical condition as rendered him incapable of taking care of himself, the officer with a knowledge of his condition, then it was no less wrong to eject decedent under the circumstances than it would have been
.Should the company be held responsible because its superintendent at Nashville and agent at Franklin knew that the decedent was on the track in a drunken and helpless condition, and that shortly thereafter a train would pass over its track through the cut, and failed to notify those in charge of it of his situation, and thus .avoid the calamity which .befell him? We think it should. The knowledge of these officers was the knowledge of the company. From the averments, they could have avoided the injury by the exercise of ordinary care. They could have saved the life of the unfortunate man by giving notice to those in charge of the passenger train of his peril, it would be a strange doctrine of ethics and of law if an unfortunate man, on a dark, cold night, in a drunken and helpless condition, is on the track of a railway company in a deep cut, and that fact is known to the superintendent, together with the knowledge that a passenger train will soon pass over the track through the tunnel, and will probably kill him, that the company is not responsible if its superintendent could have avoided the injur3r by the exercise of ordinary care, and failed to do so. We are of the opinion that if the death of deceased would naturally and probably flow from the act of his removal from the train at the time, place, and under the circumstances in his physical and mental condition, then the company is liable. We .are also of the opinion that, if the company could not be made responsible for the acts of its agents and servants in thus removing the decedent, still if he was on the track
Whole court sitting.