Louisville & N. R. R. v. Kimbrough

| Ky. Ct. App. | May 7, 1903

Opinion op the court bt

JUDGE O’REAR

Reversing.

Appellee, aged about 13 years, while stealing a ride on one of appellant’s passenger trains, in Logan county, fell or was pushed from the steps of the rapidly moving car on which he was riding, and was severely injured. He had been a resident of Clarksville, Tenn., but had abandoned his home there (if it can be said that he .had a home there), with the intention of making his home in this State. He was a waif, abandoned by his mother when he was about six months old, and his father is unknown. Whether his mother was living, or, if living, where, was not shown. In his suit to recover damages from the railroad company, brought by his statutory guardian appointed by the Logan county (Ky.) court after his injury, 'the first question presented was upon the jurisdiction of the Logan county court to appoint the guardian — for the right of the guardian as such to maintain this action is denied.

Domicile is correctly defined as being either one of origin, of choice, or by operation of law. Every person must be assigned to one of these. So that the place of the resiidence of the father of a legitimate child, or, if illegitimate, of its mother, at its birth, is its domicile of origin. As an infant is incapable of changing its domicile by choice (Munday v. Baldwin, 1 Rawle, 420" court="Pa." date_filed="1829-06-15" href="https://app.midpage.ai/document/williams-v-carr-6314320?utm_source=webapp" opinion_id="6314320">1 R., 420, 79 Ky., 121" court="Ky. Ct. App." date_filed="1880-11-20" href="https://app.midpage.ai/document/munday-v-baldwin-7131132?utm_source=webapp" opinion_id="7131132">79 Ky., 121), it follows that where-ever may be the domicile of its father, if it is legitimate, or otherwise of its mother, controls. But where the child has neither legal father nor living mother, and where neither is shown to have maintained a domicile at any place, then it must follow that the child’s domicile must bp fixed by operation of law. If the mother’s domicile was shown, the child’s would be accordingly settled. But here is a waif, knowing nothing of its parents, and of whom nothing ■can be shown, stranded in a community within this Commonwealth. It probably has a certain right to property. Society is interested, alike from motives of humanity and of policy, in preserving to such one that which, if his, will likely save him from being a charge upon the public. The authorities of this State under its laws have taken charge of the person of this derelict, and committed him to the almshouse. They have fixed him a domicile, for the very good reason, in this case, that he appeared to have none other, and it was necessary that he have one. Therefore the law will make him one. The fiction of the law that his mother’s domicile, if living, or, if dead, her last domicile, was his, should yield to the more practical fact that, being found a wanderer and an outcast, the law will take charge of him for his good and for that of the State; it will fix his status in the social state as affects his rights, the right of control of his person, and the charge of his property. The State has “adopted” him, as it were; has fixed his residence, his place of abode. It is meet that it should, having thus taken charge of his person, whether with or without his consent, also provide officials to take charge of and represent his property interests. Our statute (section 2015, Ky. St. 1899) provides: “The court of the county in which the minor resides at the time of the appointment shall have jurisdiction” to appoint his guardian. We are of the opinion that the county court of Logan county, prima facie, had jurisdiction to appoint the guardian suing in this case.

The boy was riding on the rear steps of the Pullman car attached to appellant’s north-bound passenger train. The petition alleged that either the servants of the Pullman Company “or” the servants of appellant pushed and kicked appellee from the moving train. It is now urged by appellant that the petition was defective in that it failed to state a cause of action against either of the defendants; that our Code provision (Civ. Code Prac., section 113, sub-sec. 4) allowing charges in the alternative did not extend to charging alternative defendants with a single wrongful act. L. & N. R. R. Co. v. Ft. Wayne Electric Co. (108 Ky., 113" court="Ky. Ct. App." date_filed="1900-03-10" href="https://app.midpage.ai/document/l--n-r-r-v-ft-wayne-electric-co-7134376?utm_source=webapp" opinion_id="7134376">108 Ky., 113, 21 R., 1544), 55 S.W., 918" court="Ky. Ct. App." date_filed="1900-03-10" href="https://app.midpage.ai/document/l--n-r-r-v-ft-wayne-electric-co-7134376?utm_source=webapp" opinion_id="7134376">55 S. W., 918. Without motion to compel appellee to elect which of' the defendants he would prosecute, and without demurrer, appellant tendered an issue in the case. This objection is raised here for the first time. We hold that the defect, if it was a defect, was waived by failure to object before answering. Sections 85, 86, Civ. Code Prac.

The jury found for appellee $1,550 in damages.

Appellant relies upon these grounds for reversal, in addition to those already discussed, viz.: That the verdict is against the evidence, and error in instructions to the jury.

Appellee was the only witness who testified as to the manner of his having been injured. In his testimony he stated that between Guthrie and Russellville, about 9 o’clock at night, as he was sitting on the steps of the rear platform of the rear ear of the train (which was the Pullman car), a person dressed in a uniform, having a blue coat and brass buttons, and a cap with- writing on it, came out of the door, saw him, and asked him what he was doing there. This person did not offer to molest appellee, but returned into the car and closed the door, Through fear, appellee crept farther down on to the bottom step, or the one next to it, and was crouching there, with his legs hanging down so that his feet' struck the ties, when the person above described returned with another person, also wearing a uniform, including cap. The latter was described as being “a big fat man,” who, appellee claims, placed his foot against him, without a word, and shoved or kicked him off the car. The train was traveling at 35 or 40 miles an hour. Every person connected with the operation of that train, except the fireman and baggageman, were introduced by appellant as witnesses. All of them, excepi one, testified that they had never seen appellee, and knew nothing of his presence on the train, or of his' injury, till afterwards. Appellee, on being re-examined after these witnesses, testified that none of them was the person who shoved or kicked him off the train.

Sharpe, flagman on the train, testified that he went upon the rear platform to readjust a marker, a red light carried there, when he discovered appellee; that he was then hanging on to the hand bar and lower step of the car; that the side door of the vestibule was closed; that he asked appellee if he could climb up onto the steps, and appellee told him he could not; that he pulled the signal cord to the locomotive, giving the emergency signal to stop, and went forward to inform the conductor of the situation; that the boy was so placed that the witness could not with safety to Ms own life, at the speed the train was going, have taken hold of him and lifted him onto the car; that when he returned directly the boy was gone; and that the train ran about one mile and a quarter before stopping after the boy was first discovered by him.

The negligence complained of and sued for was not in failing to stop the train and rescue appellee from the peril of falling from an insecure, dangerous position, nor for failure to aid him in regaining his foothold on the steps, for he says (and he is the only witness who testified on that point) that but for the push or kick of the fat man in uniform he would not have fallen. This was the sole ground of negligence relied upon in the petition. Therefore his whole case, as the pleadings now stand, depends on connecting this fat man with appellant as one in authority on that train, assisting in its operation as one of appellant’s servants. Whether baggagemen on trains and firemen wear uniforms such as described by appellee is not shown by the record. Whether it is a fact of such common knowledge that the courts should take notice of it is not at all certain. Such uniforms are not confined in their use by any means to trainmen. The only other person on that train who is shown to have then worn a uniform was the newsboy. He was not introduced as a witness. There was no evidence tending to show that the newsboy had any connection whatever, as a servant with appellant, and of course, therefore, none that he had any authority whatever in the operation or management of the train. In the way the issue was formed it is doubtful if the verdict was sustained by the evidence.

The instructions are not subject to proper criticism, except the one given, marked “O,” as follows: “The court instructs the jury that if the news agent who was on defendant’s train on the occasion in controversy was neither in the service nor under the control of the defendant, and even if the jury shall believe from the evidence that plaintiff was pushed or ejected from the train by said news agent, they must find for the defendant, unless they shall believe from the evidence that said news agent was one of defendant’s employes in charge of and operating said train.” As there was not a scintilla of proof that the news agent had any connection whatever with the operation of the train, or even that he was an employe of appellant, the instruction was misleading, and it was error to submit that question to the jury upon the state of the record.

For the reasons indicated, the judgment is reversed, and cause remanded with directions to award appellant a new trial under proceedings not inconsistent herewith.

Petition for rehearing by appellee overruled.