19 S.W.2d 997 | Ky. Ct. App. | 1929
Reversing.
In this action to recover damages for the death of Robert Napier, the appellee, who was the plaintiff below, recovered a judgment for $10,000, and the defendant has appealed.
The body of Robert Napier was found upon appellant's tracks about 6 o'clock in the morning of December 22, 1922, at a point about 200 yards from a public road which crosses the railroad tracks near, or just within, the corporate limits of the city of Hazard. The body was badly mangled, and had been dragged a distance of *324 50 feet. A train composed of an engine and a number of coal cars left Hazard about 3:45 a. m., on December 22, 1922, and went to Hardburly, passing on the way the point where Napier's body was found. There is proof that blood was found on the pilot of the engine when the train returned to Hazard shortly after 6 a. m.
It is plaintiff's theory that his intestate was struck and killed by this train while he was walking along the railroad track at or near a public crossing, and that the train did not give any signals of its approach to the crossing, and in this respect the employees in charge of it were guilty of actionable negligence. There was absolutely no evidence to support this theory. An effort was made to show that at the point where the body was found, the railroad tracks were used by such a number of persons as to make the users licensees. Two or three witnesses testified that two or three hundred people used the railroad tracks at and near the crossing, but none of them specified any number that used the tracks at the point where the body was found. Nor did any witness undertake to state that the tracks at this point were used by any number of persons about the hour of 4 o'clock in the morning. Even had the deceased been, struck by the train at the crossing, there is no evidence that the employees in charge of the train failed to keep a lookout or to give the customary signals. One witness, Ed. Ivey, who lived at Allais, a station near the place where the body was found, testified that he was awake about 2 or 3 o'clock in the morning and heard a train, but did not hear it whistle for Allias. On cross-examination he admitted that he heard at least six blasts of the whistle, and that these were blown at about the place where the body was found.
It was shown that the deceased was in an intoxicated condition earlier in the night, and that he left the home of Tony Mercheser about midnight. Deceased was a deputy sheriff, and his duties were to patrol the mining camp of Allais during the night. About 3 o'clock in the morning a number of shots were fired in the camp, and one witness testified that he examined the body and found a hole in the head about the size of a lead pencil and another in the leg near the knee. So far as this record discloses, the deceased may have been walking along the railroad track when he was struck and killed, or he may have been asleep on the track, or he may have been riding *325 or attempting to get on some part of the train and have fallen from it, or he may have been murdered and his body placed on the track.
Stewart's Adm'r v. Nashville, Chattanooga St. Louis R. Co.,
In the recently decided case of Chesapeake Ohio R. Co. v. Preston's Adm'x,
But the plaintiff is confronted by a more serious question. The time for filing the petition expired on December 22, 1923. The petition bears this indorsement: "Filed, tax paid, one summons and one copy issued March 11, 1924. Z.T. Duff, Clerk." The words and figures, "December 20, 1923," also appears on the petition, but these have been stricken out. When the question *326 of limitations was raised in the lower court, proof was heard by the court, and plaintiff testified that he delivered the petition to Lee Daniels in the circuit clerk's office on December 20, 1923. Lee Daniels had been deputy circuit clerk, but he had resigned, and his resignation had been accepted in September, 1923. However, he testified that he continued to do some work in the circuit clerk's office, and that the petition was handed to him by the plaintiff, and that he indorsed thereon, "December 20, 1923." He issued no summons, and it is conclusively shown that no summons was issued until March 11, 1924, and that no filing tax was paid on December 20, 1923, but was paid on March 11, 1924. Conceding that the petition was delivered to the clerk of the Perry circuit court on December 20, 1923, this did not stop the running of limitations.
In ruling on a similar question in Casey v. Newport Rolling Mill Co.,
It follows that plaintiff's cause of action was barred by the statute of limitations, and his petition should have been dismissed.
Judgment reversed.