Louisville & Nashville Railroad v. Copas

95 Ky. 460 | Ky. Ct. App. | 1894

JUDGE PRYOR

delivered the opinion oe the court.

"We perceive no reason for reviewing this case for the alleged error in refusing to grant the peremptory instruction. The plaintiff had made out his case. In the discharge of his duty he had been seriously injured by reason of the gross neglect of those whose duty it was to load the cars properly, and could not by the exercise of the utmost diligence have avoided the injury inflicted by the projecting rails in the attempt to couple the cai;s.

The instructions made the company liable in the event the injury was the result of gross negligence on tlio part of the employes of the road, and the only question necessary to be considered arises from the failure of the plain-, tiff’ (appellee) to reply to the plea of contributory neglect. The plaintiff in his petition had by direct averment negatived any negligence on his part, still it was incumbent on the defense to rely bjr plea on such contributory neglect on the part of the plaintiff as brought about the injury, and but for which the accident would not have happened.

Here was affirmative matter that required a reply, and the defendant was .entitled to a judgment on the pleadings. Was its right to such a judgment waived by failing to make a motion for such a judgment? It is not pretended that any reply was filed or offered to be filed, and, even upon the motion for a peremptory instruction, the court would have been compelled to sustain the motion, if apprised of the condition of the pleadings; but the court was not required to examine the pleadings for that purpose, unless some motion was made for a judgment on that ground.

A motion for a non-suit is a demurrer to the evidence only, and where the bill of exceptions fails to show a motion for a judgment on the pleadings or that the court’s attention was called to the failure to reply to the answer as one of the grounds for the motion, this court must necessarily assume that the motion for a non-suit applied alone to the evidence. The court below had no opportunity of passing on the question so as to determine the necessity for a reply, but on the contrary, instructions were asked by defendant, and given, as if the issue on the plea had been fully made up, and after verdict the motion for a new trial was based only on the usual grounds, and at no time was it claimed that the pleadings were so defective as to authorize a judgment for the defendant, the evidence sustaining the charge of negligence made by the plaintiff.

We can determine what took place below during the progress of the trial only from the record, and therefore can not assume that a demurrer to the evidence brought up the question as to the sufficiency of the pleadings. The case was tried as if the issue was made, and the right to a reply by the plaintiff to the answer waived.

Judgment affirmed.