115 Ky. 512 | Ky. Ct. App. | 1903
Opinion op the court bt
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
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, 21 R., 1544), 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
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
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 de
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.