126 Ky. 589 | Ky. Ct. App. | 1907
Opinion op the Court by
Affirming.
Appellee’s intestate was killed while in the employ of appellant as brakeman, and at work in its yards at Guthrie, Ky., February 9, 1905. The evidence shows, without contradiction, that when killed he was between two cars, standing six or eight feet apart, and was inspecting the coupling apparatus or adjusting the brake knuckle lock. This was in his line of duty as shown by oral evidence, and rules number 130 and 224 of appellant prescribing the duties of a brakeman and other employes. Rule number 224 reads as follows: “Rule 224. All employes are hereby instructed, each for himself, to examine so as to know the kind and condition of the draw-heads, drawbars, and coupling apparatus, and are prohibited from placing in a train a car with defective coupling until they have first reported its defective condition to the yard master, conductor, or proper person in authority. Sufficient time is allowed and must be taken by employes in all cases to make examinations.” Rule 130 reads as follows: “Rule 130. Employes of every grade are warned to see for themselves, before handling or using them, that the cars, machinery and tools, which they are expected to handle or use, and the premises upon which they are expected to work, are in proper condition for the service required, and if not, to put them in proper condition, or.see that they are so put before using them.” The deceased was directed by the yardmaster at Guthrie to take the engine and crew and take out some freight cars that
The engineer under whom deceased was laboring testified that, after he backed onto trade No. 4 and reached the cars that he was to pull out, he never moved his engine either backward or forward to the time that Herndon was killed; that he was in his cab with his head out of the window, looking back for signals, and saw some one with a lantern going in between the cars as though he was examining the couplings and adjusting the air hose. He could not tell at the time who this person was, for it was dark, but it turned out to be Herndon. He further stated that deceased went into the place where he was killed
The instructions of the court are in the usual form in such cases, and contain no error, at least non© prejudicial to the rights of appellant.
Appellant insists that the Kentucky Bank & Trust Company, a corporation, is not authorized by the laws of this State to act as public administrator, in which capacity it brought this action, and contends that, as this fact appears on the face of the petition, this question was properly made and saved by its general demurrer to the petition, and also that, even if it had the right to act as public administrator, it was appointed, according to the exhibit filed with the petition, July 1, 1901, and this action was instituted September 4, 1905, more than four years after the appellee became public administrator, and its term of office had expired long before the action was brought. It appears from the petition, and is not controverted, that appellee was duly organized under the statutes of 1903 of Kentucky.' By section 606 of the statutes it is provided that it may be appointed and act as guardian, executor, or administrator; and, by section 611, its capital stock shall be taken and considered as the only security required for the faithful performance of its duties, and no other security shall be required, unless the court or officer in or before whom the bond is executed,, or some party in interest, demand it. Under these sections of the statutes, it is clear that it can receive specific appointments as guardian, executor, or administrator, and
Appellant claims that the opinion in the case of L. & N. R. R. Co. v. Brantley’s Adm’r, 96 Ky. 297, 16 Ky. Law Rep. 691, 28 S. W. 477, 49 Am. St. Rep. 291, changed this rule. If so it undertook to change a plain provision of the Code, but we do not* understand the opinion that way. In that case the petition showed on its face that the deceased was a resident of Indiana when he was killed, and appellee, his administrator, was also a resident of Indiana and appointed as such administrator by a court of Indiana; and in that ease the court said that a non-resident appointed as.administrator by a foreign state could not maintain an action in this State, unless authorized by statute,
Appellant further contends that the judgment in this case is void for the reason that it was rendered at a special term of the Hopkins circuit court, when a regular term of the court, as fixed by statute, was being held in Caldwell county, Ky.; both counties being in the same judicial district. Appellant’s, counsel claims that the act to amend section 964 of the Kentucky Statutes of 1903 • (chapter 23, p. 249, Acts 1906), authorizing a special term to be held in another county of the judicial district, is unconstitutional and void. We are of the opinion that the amendment is not unconstitutional. Section 131 of the Constitution provides: “There shall be at least three regular terms of circuit court held in each county every year.” This section requires the General Assembly to provide for not less than three terms of circuit court a year in any county; but it does not prevent it from providing for more than three terms. This act authorizing a special term in effect provides for another term of the court in the county when it is called, and does not conflict with section 135, which provides: “No court save those provided for in this Constitution shall be established.” Section 136 of the Constitution says: ‘ ‘ That the General Assembly shall provide by law for holding circuit court whenever for any cause the judge shall fail to attend, or if in attendance can not properly preside. ” • This section is a command to the General Assembly to make provisions for a special judge in the cases named; and does not have the effect to limit the right
For these reasons, the judgment of the lower court is affirmed.