xt73bk16mf8w_871 https://exploreuk.uky.edu/dips/xt73bk16mf8w/data/mets.xml https://exploreuk.uky.edu/dips/xt73bk16mf8w/data/51w14.dao.xml unknown 35 Cubic Feet 77 boxes archival material 51w14 English University of Kentucky Copyright has not been assigned to the University of Kentucky.  Contact the Special Collections Research Center for information regarding rights and use of this collection. Louisville and Nashville Railroad Company and Lexington and Eastern Railway Company records Railroads -- Appalachian Region -- History. Railroads -- Kentucky -- History. L&N and L&E v. Albert Copley text L&N and L&E v. Albert Copley 2016 https://exploreuk.uky.edu/dips/xt73bk16mf8w/data/51w14/Box_72/Folder_1/14005.pdf section false xt73bk16mf8w_871 xt73bk16mf8w Form 1207
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OTHERWISE THE TELEGRAM I
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FALL TERM. 1916.
Case No. 331.
LOUISVILLE & NASHVILLE RAILROAD
COMPANY AND LEXINGTON & EAST-
ERN RAILWAY COMPANY, - — Appellants,
versus
ALBERT COPLEY, - - - - - - Appellee.
BRIEF FOR APPELLANTS.
Appeal from Letcher Circuit Court.
SAMUEL M. WILSON.
_ BENJAMIN D. WARFIELD. Comm“ for Appellant‘-
JAMES J. DONOHUE.
MORGAN & HARVIE.
D. I. DAY.
Of Counsel.
_ WESTERFIELD-BONTE Co., {No—oarommn. LOUISVILLE, KY.

 la?
7: POINTS AND AUTHORITIES.
I. PRELIMINARY STATEMENT.
II. PLAINTIFF’S PETITION, AS AMENDED,
FAILED TO STATE ANY CAUSE OF ACTION
' AGAINST THE DEFENDANTS AND DEFEND-
ANTS’ DEMURRER THERETU SHOULD HAVE
BEEN SUSTA lNED.
Ky. Stats., Soc. 805.
L.. N. A.. & C. R’y (‘0. v. Bryan, 107 Ind. 51, s. c.
s I 7 N. n. 807.
. ‘ . III. THE (‘OII’RT ERRED IN REFUSING TO
.’ SUSTAIN DEFENDANTS’ CHALLENGE TO THE
: ENTIRE J URY PANEL AND IN OVERRULING
5 THEIR MOTION TO DISCHARGE SAID ENTIRE
I PANEL.
Ky. Stats., Sec. 2214.
Louisville, Henderson & St. .L. R’y Co. V. Schwab,
> 127 Ky. 8‘2, 5. c. 105 S. IV. 110.
Louisville R’y Co. V. IVellington, 137 Ky. 719,
s. c. 126 S. IV. 370, s. C. 128 S. IV. 1077.
. L. & N. R. Co. v. King, 161 Ky. 3'24, 8. c. 170 S.
. IV. 938.
. L. & N. R. Co., etc, v. Owen, 164 Ky. 557, s. c. 175
E S. W. 1030.
l L. & N. R. Co. V. Messer, 165 Ky. 506, s. c. 176
l S. IV. 1200.
' Trosper Coal Co. v. Rader, 166 Ky. 797, s. c. 179
S. \V. 1023.
L. & N. R. Co. v. Patrick, 167 Ky. 118, s. c. 180
S. W. 55.
L. & N. R. Co. \'. Petrey, 167 Ky. 223, s. c. 180 S.
I . IV. 370.
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3
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' C., N. O. & T. P. R’y Co. V. Strunk’s Admx., 167 >, { Williams’ Admr. V. Southern R’y Co. in Ky., 115

Ky. 340, s. c. 180 S. W. 528. * .,. Ky. 320, s. c. 73 S. IV. 779.
Mahan Jellico Coal Co. v. Bird, 167 Ky. 697, s. c. k L. & N. R. Co. V. Stokes’ Admx., 166 Ky. 142, s. c.
_ 1.81 S. W.,339. . _, . v " ' 179 S. IV. 47.
. _ . . . . > . Garneau’s Admx. V. Ill. Cent. R. Co., 109 Ill. App.
. g . IV. THE COURT ERRED IN OVERRULING DE- 169.

. ' FENDANTS’ MOTION FOR A PEREMPTORY IN- 111.. Cent. R. Co. V. Warren, 149 Fed. Rep. 658.
STRUCTION, DIRECTING THE JURY To FIND IN Sklfiff' 1§é§§%1§150n’ TOI’eka 8‘ S' F' R“ CO" 39
FAVOR OF THE DEFENDANTS, WHICH MOTION
WAS FIRST MADE AT THE CLOSE OF PLAIN- V. THAT, AT THE CLOSE OF THE WHOLE
TIFF’S TESTIMONY AND TWICE RENEWED AT CASE, AFTER DEFENDANTS’ MOTION FOR A
THE CLOSE OF ALL THE EVIDENCE. j V I‘EREMPTORY INSTRUCTION, AS RENEWED,

. , I \ HAD BEEN OVERRULED, THE COURT ERRED IN
Ky. Stats., Sec. 80:). ’ . fl ‘ , T Y
Louisville Bridge Co. v. Sieber,157 Ky. 151, s. c. ‘9- !— PbRMlTTING THE PLAH‘ITIFF, OVER DEFEI‘D-
162_ S. W. 804. ANTS’ O B J E C T I O N, TO FILE A SECOND
KY-lglgshlwdifi 00- "- 011331, 155 KY- 468, S- 0- AMENDED PETITION, MAKING A MATERIAL
Jonas: V..S01ItlICovington & 0. St. R’y C0-, 162 CHANGE IN THE CAUSE OF ACTION ORIGINALLY ‘
Ky. 17], s. c. 172 S. W. 131. SOUGHT TO BE ALLEGED; AND THAT THE
ICII-&C<(>)nt-RRV g2 IV (fit: 113?; §{ Wi623t9. 134 COURT FURTHER ERRED IN DENYING DEFEND—
. is,'o.. ‘,s.c. %
S. W. 143, S. c. 33 L. R. A. (N.yS.) 165. . ANTS’ MOTION TO SET ASIDE THE SWEARING
Selsor V. C. & O. R’y Co., 148 Ky. 39, s. c. 145 S. ‘ OF THE JURY AND CONTINUE THE TRIAL TO A I
W 1133 1 w . - v m . v
- - .‘u‘ E) F. m‘.
Louisville & Eastern R. Co. V. McNally, 105 S. IV. bLBSEQLFhT T {R f O 4 JHb COLer
]24. T y T ‘ T I ‘1' \
Jones V. Mobile & Ohio R. R. Co., 127 S. W. 144. _ VI' THE COL RT ERRED lb REFLSD‘G TO ‘
Swartwood’s Guardian, etc., V. L. & N. R. Co., etc., GIVE TO THE JURY THE FIRST INSTRUCTION
1129(NYS2)417, s5 0. 111$). W. 305 s. c. 19 L. R. OFFERED BY THE DEFENDANTS, DESIGNATED
I . . . 11L, s. c. 1 Am. St. Rep. 465. T , , n T a
Monehan V. South Covington & C. St. R’y Co., 117 be. 1’ AND ALSO LBRED IN GIVHVU TO THE
Ky. 771, S_ c. 78 S. W. 1106. JURY, UPON ITS OWN MOTION, OVER DEFEND-
LexIngton R’y Co. V. Herring, 96 S. W. 558. ANTS’ OBJECTION, THE INSTRUCTION DESIG-
LouISVille R’y Co. ‘V. Rammacker, 51 S. W. 175. NATED u A u
111. Cent. R. Co. v. McManus’ Admx., 67 S. w. ‘ ‘ '
1000 . . r
. .. L.&N.R.C. .Pt‘ 16 K. ‘ r.
L. & N. R. Co. V, Bernard, 37 S. IV. 841. .' a I S. IV. 378 V e May, 7 y 223’ g c 180 K}

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VII. THAT THE COURT ERRED IN REJECT- N i ' Court of Appeals Of Kentucky
lNG COMPETENT AND IN ADMITTING INCOM- 5
FALL TERM, 1916, No. 331.
PETENT EVIDENCE; THAT THE VERDICT IS EX- l
CESSIVE AND APPEARS TO HAVE BEEN THE i W
RESULT OF PASSION OR PREJUDICE AND IS f LOUISVILLE & NASHVILLE RAILROAD COMPANY,
GLARINGLY AGAINST THE -WEIGHT OF THE ‘ AND LEXINGTON & EASTERN RAILWAY COM-
EVIDENCE; AND OVVING TO THE ILLNESS OF PANY, — - — - - - - - - Appellants,
JAMES MAGGARD, ONE OF THE JURY, APPEL- v.9. BRIEF FOR APPELLANTS.
LANT’S FAILED TO SECURE A FAIR AND IM- I,
PARTIAL TRIAL. I ALBERT COPLEY, — - - - - - - — lAppellee.
Rager v. L. & N. R. Co., 137 Ky. 811, 817, s. c. I .'__
127 S- W- 155- Q l ,, APPEAL FROM LETCHER CIRCUIT COURT.
VIII. CONCLUSION. i _.._—..__
I.
3 III the court below Albert Copley, the appellee, was
1; plaintiff and the appellants, Louisville & Nashville Rail-
i road Company and Lexington & Eastern Railway C0111-
! puny, were. defendants, and, for convenience in the argu—
I went, at times the appellee will be referred to as plaintiff
' and the appellants as defendants. Unless otherwise
i stated, the italics used in the brief are ours.
5' The appeal here prosecuted is from a judgment of
E the Letcher Circuit Court for twelve thousand dollars
6'1 ($12,000.00), rendered on February 5, 1916, upon a Ina-
! jority verdict of the trial jury in favor of the plaintiff.
‘ i On a former trial of the case, in the same court, in the
; l month of May, 1915, the jury disagreed.
x it The action arose out of an accident which occurred
, , on Sunday, August 30, 1914, in the vicinity of Neon, a
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station on defendants’ main line in Letcher County, Ken— ' , about 190 to 200 pounds, and of first—rate physique. He
tucky, and on what is known as a “Y,” or a leg of said had previously had from fifteen to seventeen years’ ex-
“Y,” used at the time for the purpose of turning loco- ‘ perience as a railroad man, having worked, either as fire-
motives and trains of cars. The accident happened about l man or engineer of a locomotive, for a half dozen or more
one o’clock p. m. in the day time, and was witnessed by different companies, among which he named the Chesa-
a number of persons gathered at or nearby the place of l peake & Ohio Railroad, more than once, Pennsylvania
the accident. Railroad, the Philadelphia & Reading, upon which he
At the time plaintiff was hurt, he was trying to board was promoted from fireman to engineer, the Baltimore
defendants’ train, which was then in motion and proceed- & 01110 Railroad, the Virginian Railroad, and the Great
ing at the rate of from four to six miles per hour. This , a Northern Railroad, out in the far western State of Mon-
train was a passenger train and consisted of a. loco- tana. He knew what a “Y” was and he knew the pur-
motive and three coaches, a baggage car, combination ,. h pose of a “Y ” and the uses to which it is put. He had
coach, and ladies’ coach. In attempting to mount the been in the vicinity of Neon for about eight weeks prior
steps immediately below the front platform of the ladies’ , l to the accident and knew of the existence and condition
coach and on the right side thereof, looking toward the 1 Of this particular “Y” and the uses then and there made
head of the train, the plaintiff either missed his hold on i 0f it- The Pl'OOf showed that he had been drinking on
the grab-irons or handholds, as they are called, or hav- l the morning 0f the day on which the accident 000111‘1‘9d
ing got hold of one or both of the grab-irons with one -] and, Oh the day before, at Fleming, a station on defend-
or both of his hands, as he undertook to place his foot on ants’ line about three-fourths Of a mile SOUth 0f Neon,
the step, he missed the step and the weight of his body had receipted in person for sixteen pints 0f whiskey,
combined with the motion of the train broke his hold A marked “for personal 1186-” Although the fact is dis~
loose from the grab-irons, causing him to fall to the i ‘ puted, it can hOt be doubted, from the testimony in the
ground, or his fall resulted from a collision between the l record, that at the time Of the accident, plaintiff was to
plaintiff and defendants’ flagman or some other person some extent under the influence of alcoholic and intoxi-
standing on the steps or attempting to get on the steps ; eating liquors.
at the front end of the ladies’ coach at the same time 3 There was no station 01‘ stopping-place, for the pur-
plaintiff made his attempt to mount said steps. i pose of receiving or discharging passengers, at the point
The plaintiff, Albert Copley, a citizen of Williamson, ,1 where plaintiff attempted to board defendants’ train.
West Virginia, was, at the time of the accident, thirty— ‘,,.; ‘ Plaintiff, however, sought to justify his action in attempt-
eight years of age, six feet tall, weighing, ordinarily, ‘ ing to board the train by introducing evidence which
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tended to establish a practice on the part of people in the _ . “Bulletin Board Order No. 133.
neighborhood of getting on and off defendants’ trains Jackson, Ky., June 6, 1914.
while moving around the “Y” in question. All of this “Passenger Train-Men and Engine—Men: You must
evidence was, of course, objected to by the defendants. not make extra stop or reduction in speed of passenger
The testimony, moreover, further showed that this was a trains f0_1' the purpose 0f permitting any 9119 to jump 0h
2;
been used for the purpose Of turning trains of cars for of safety, If emergency case demands, proper report of
much more than three months prior to the date of the ac- the extra stop should be made to the Master 3f Trains,
cident. In other wordS, its use for this purpose first be- Evil]? 11337311 tum can properly report Shme- (Th Of
gan on or about May 21, 1914, and from that time until _ , ,
the middle of August, 1914, it was only used for the pur- Notwithstamling the attempted allegations in the peti—
pose of turning one train a day. The passenger train, 6 ”I tion and amended petitions to the contrary, it will ap-
’ passing Neon station in the earIy afternoon, by which pear from the testimony in the record that, at the time
plaintiff was injured, had only been installed about two ‘he was injured, plaintiff was a more intruder or tres- :
weeks prior to the accident. Before that, there had been (passer upon dcfendants’ train and that he at no time be- '
no noon-day passenger train passing Neon station or hav- iconic a passenger 01‘ occupied the status of a passenger.
ing any occasion to use the “Y” in question. Not only This proposition seems so entirely clear, in the light of
‘ did the proof fail to show that the alleged practice of the WMWICC‘, as scarcely '50 admit 0f debate.
getting on and off dcfcndmits’ trains, while making the With this preliminary statement, the grounds upon
turn on this “Y,” had not continued long enough to 98- which a reversal of the judgment below is asked may
tablish a customary stopping-place on the “Y” (even here be hl'h‘h." enumerated, tO-Wlti
conceding that such a thing were possible), or to raise (1) That plaintiff’s POthh, 35' l‘hhhhdt‘d, faih'd 1:0
an implication of knowledge of or acquiescence in such a state 3115' (331130 0f action against the defendants and de-
practice on the part of the railroad company, but on June defendants’ demurrer thereto should have been sustained;
6, 1911, by Bulletin Board Order No. 133, issued at Jack— (2) That the court erred in refusing to sustain de-
son, Ky., the following emphatic warning against such fendants’ challenge to the entire jury panel and in over-
forbidden practice was published by defendants’ Inspec- ruling their motion to discharge said entire panel;
tor of Transportation, Viz.: (3) That the court erred in overruling dofcndants’
» ' ' J “ motion for a peremptory instruction, directing the jury
to find in favor of the defendants, which motion was first
. 4 .

 . 6 ‘ ‘ 7
made at the close of plaintiff’s testimony and twice re- . is grossly excessive, appears to have been given under
HBWQd at the. 01086 01" all the evidence; the influence of passion or prejudice, and is glaringly
, (4) That, at the 01059 0f the “11019 0359, after de- against the weight of the evidence; (e) That, on account
fendants’ motion for a peremptory instruction, as re- of the serious indisposition of James Maggard, one of
newed, had been overruled, the court erred in permitting the jury, during the trial, he was unable to give adequate
the plaintiff, over defendants’ objection, to file a second attention or consideration to the case, and defendants, in
amended petition, making a material change in the cause consequence, failed to secure a fair and impartial trial.
of action originally sought to be alleged, and which 800- These grounds we shall consider in the order above
and amended petition set up or, at least attempted to set stated.
up a, distinct and independent cause of action, all of which ,. ‘
constituted a departure from the original cause of ac- 11'
tion; and that the court further erred in denying defend- The accident complained of happened 011 August 30,
o c I ~\ Q
ants’ motion to set aside the swearing of the jury and 1914. About five weeks later, on October 8, 1914, the pres-
continue the trial to a. subsequent term of the court, which ent suit was instituted. In his original petition, omitting
motion was made after the court, over the objection of the immaterial parts thereof, plaintiff’s supposed cause
defendants, had permitted plaintiff to file his second of action is stated in the following words—
' amended etition- . . . .
~ _ 'Ill 1 ’ _ _ , “Plaintitf further says that on the — day of —,
(3) lat '5 19 court erred in IGfUSIDg to 81% t0 the 1914, while he was boarding said train as a passenger at,
jury the first instruction offered by the defendants, desig- sgid point above mentioned and after he had taken hold
. I ‘1‘ _' 1 '1 1' a . L. '
nated No. 1, and also erred in giVing to the jury, upon its 0f the 3‘31) “01,15 311?}. stepped 0‘1 the filft 5,“?wa 531d
t' 1 f 1 t ’ b' t‘ } , , train With the intention of becoming a passenger over
‘ f i ’ a . ~ ~ . .
0““ mo 1011’ 0V” (9‘ em an 5 0 39° '10“? he instruction, said road enroute to Whitesburg, Ky., a station on de-
designated “Pt”; and fendants’ road, that the ——————— agent and employe
,(6) That other errors, occurring during the progress and flaginan of said tiain.attempted to board said train
ft :1 l 1 , 1. . 1 t tl b t t' 1 , h after and while the plaintiff was hold of said grab-irons
0 ‘ ‘ . ‘ ‘ l _ u _ u _ . .
‘ .2, ”a ’ anc p1 gamma 0 19 g“ 3 an 1‘1 “g ts 0f the and on first step of said train, and in so domg he ———~——
defendants, were these, to-Wit: (a) The admission of in- flagman, agent and employe, negligently shoved the plain-
competent evidence; (b) The rejection of competent eVi- tiff loose from and off of and under said train, thereby
dence (c) The d n' l f d f d t , t' t th I causmg said train to run over the plaintiff’s left leg and
’ e a 0 e en an 5 mo ion, a e C 053 cutting same off just above the knee. * * "
of the whole case, to exclude certain ev1dence designated “The plaintiff further says and charges that all of
. . . . . . L ' ' ‘ . n , . V — C .
m their written motion under the headings Nos. 1, II, and ( :11? said inljui y ubOVC (311161111131 ated and sulffeiing afnd1 111311—
4" 1“. ' _ ‘
. . .‘i aneuis i was causei y ie O'i‘oss neO' wence 0 tie e-
TV therein: (1 The the r i ' . , ' . ( b - D ‘5 C” - -
' (‘) t ve Chet ietuined b3 the jar} fendant company, its agents and employe, while this
t ( u i

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i .: , - x . 1 . ' '-r +
o a n n n .L f ‘ , , ._
plaintiff was boarding said train as a passenger as afore— . ment oneel, it will appeai that the plaintnf does not pre
3 said.” (R., pp. 2, 3.) ' tend that he attempted to board defendants’ train at one
, , of its regular stations or that it had stopped to receive
, After defendants had filed a general demurrer and . , . . . . . .
: t _ t’ t tl t't' tl 1 . tiff J him on tne occasion in question. 011 the contrary, it IS
A eer ain mo ions 0 10 e 1101] re )‘dlll 1’ on anuarv . ,. . .
. _ p _’. I _ ’ ‘ ' disunctly shown that plaintiff’s attempt to board the
1 4, 1910, filed an amended petition, seeking to strengthen . .
; _. _ ~ _ _ ' train was made away from the regular stopping-place
- and make more specific certain allegations 111 the original ., . . . . .
. . . , . , _ _ . and whne the train was in motion and, notwithstanding
, petition. be much of this amended petition as is pertl- . . - -r- - - -
i . , ' it 1s alleged in the amended petition that the lllJtll‘leS com-
‘ nent, is here quoted, V1Z.: . 1 . ,
j planied of were caused ‘ Without fault on the part of
““’hile the train was on said Y and was proceeding .. plaintiff,” the petition, 39 amended, carries its 0““ 0011'
, ECI'Y slowly 011 537110» the Plalhltlff, ‘;‘Hh $1110 ll'ltbentIOH 01' " tradietion of this statement, for it reveals the fact that in
' econnng a passenger over sun rear to .'Yiites urg, was . . - . .
hoarding said train and had caught hold of the grab—irons . Jitcmptlng to board the tit in as he did, the phlmtlfi “de
on said car and had his foot on the first step of said car, “' a wrongdoer, acting in Violation 0f the GXPTGSS provisions
' ,.. '.1, 2,, .. , - .. .
tht flagman, .in empom and agnt of defendants, with of the law. (l\y. Stats, Sec. 800.) In addltion to this,
gross carelessness and negligence, pimped upon the first 1 '11 ' tl ' ' 1 t't‘ ' t] d l
it‘gpwnth much force, and took hold of the grab-irons, and now mu" er 101 111 10 011011111 pt 1 10D 01 111 1e amen e(
in so doing the flagman, an employc of defendants, fort-cred PQtifiOh’ is it alleged that defendants’ flagnian, in ShOV'
the plaintiff loose from the gran irons and caused him 111g 01‘ forcing the plaintlff off the tram, as alleged, ‘Vass
to fall off and under the train. * t t' . tl 1. f 1. 1 t '11 . tl t 1 ' ‘ K
A‘ r ‘ ' i . ‘ J 7 ~ 7 ' n . - _ ,
‘The plaintiff further states that while on the steps ac 111g in K 1110 0 HS in E 01 in 1111 19 ac ua 01 211)
as aforesaid, he was in plain View of the fiagn'ian, and parent $00139 Of his authority “S “011 flaginan. The ShOV-t
that said flagrnan. saw him or by reasonahle diligence ing or forcing or jostling of plaintiff from the train, as
could have seen lllll], and that, notwrthstandmg the flag— 11 1 ‘ 1 dt 1 b d 1' t1 b t f A
., ' ‘ ,‘J ‘ '0‘: , ' A )0' (1'_) v _-
man saw or could have seen him, he Jumped on the steps d 98“ ’ 15 C ”1le 0 lme 0L1] one mt’ lbul 3’ u or \
as aforesaid and caused the plaintiff to fall and injured asmuch as plaintilf was a trespasser and not a passenger i\
35 heretofore stated. at the time, the defendants’ flagman manifestly owed him :"
"the plaintiff further says and charges that all the 1 t 1'1 1 t 11 1 ' t'ff ' 't' f f
. . _ ' r _ 4 c ' Y ‘...—
inJury above enumerated, and suffering and mental an- no (u ‘3 un 1 m ac 111 “V saw 10 am 1 111 a p081 10H 0 ,"'
mush was caused by the gross negligence and careless- POI“ “11d realized SUCh peril, if any, in time, by the GXGF- 'e
- , . . ‘ ' 1 . . . . . . i
ness of the defendant companies, its agents and employes (3180 of ordinary care, to have avmded shovmg, forelng "
as heretofore stated, and without fault on part of plain- ' 1—1' 1 ' t'ff f t1 t ' Tl V ‘
tiff, by which the plaintiff has been damaged in the sum 01 10s mg p .111] 1 rom 10 rain. 1e utmost length
of fifteen thousand dollars ($15,000,001.“ (RH PD- 7—8.) to which the petition, as amended, goes, in respect to such
‘ _ , _ _ necessary fore-knowledge on the part of the flagman, is
1* rom an examination of the foregomg extracts as 4: “ - u -
, ’ to make the allegation that while on the steps, as afore-
also from the entire contents of each of the pleadings

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I:

_ 10 ' a 11
said, he (the plaintiff) was in plain View of the flagman, : The demurrer to the petition, as amended, having

; and that said flagman saw him or by reaozsonable dil'i— ' been overruled, an answer to the original petition and a
game could have seen him, and that, notwithstanding the separate answer to the amended petition were filed by
flagman saw or could have seen him, he jumped on the the defendants on January 18, 1915' No further pleading
steps, as aforesaid, and caused the plaintiff to fall and was ever filed by the plaintiff, until February 4’ 1916, at
(be) injured as heretofore stated.” Construing the the conclusion of the second trial of the case. The first
pleading, as it must be construed, most strongly against trial was had in the month of May, 1915’ and, at the close
the pleader, the foregoing averments mean no more than of that trial and after all of the testimony had been taken
that defendants’ flagman might “by reasonable dili‘ and defendants’ motion for a peremptory instruction had
genes” have seen plaintiff, while on the step 0f the car. 5 been overruled, the plaintiff ’s attorneys suddenly dis-
But, if the flagman was under 110 (111W to keep a. lookout W covered that no reply had ever been filed to either of de-
for plaintiff at the time, any failure of his to see the fendants’ answers and thereupon, by leave of court and
plaintiff or to exercise ordinary care or reasonable dili- ' 2- ,over the objection of the defendants, the plaintiff was
gence to see him, can impute no negligence to the defend- permitted to traverse of record the aflirmative matter
ants. NOt only is this SO, but, as Win appear at a glance, contained in the two answers previously filed for the de-
the petition, as amended, utterly fails to charge that the fendants. (R, pp. 88, 89.) On the first trial of the case,

‘/ flagman saw 01‘ could have 59911 the plamtlfféggtlméto in May, 1915, it was treated by both the court and the

11%9X9ii‘3fl390m30t With him._ AS the proof clearly parties as a case of negligence, pure and simple. The
shows, it all happened in a few seconds, in much less time issues were framed, the evidence was adduced, and the
than it takes to tell it, and even had the Chit-Y 0f the de- instructions were prepared, offered and given upon the
fendants 01‘ their ‘flagman, under the circumstances, been theory and the sole theory that the defendants were lia-
of the high character contended for by the plaintiff, there ble, if at all, for negligence 011 the part of their flagman
could not have been any breach 0f $11011 dUtY- It is the or their trainmen in charge of and operating this par-
sufficiency of the pleadings alone, however, which we are ticular train. At no time, either in the pleadings, the
now considering, and considering that question alone, it proof, 0,. the law of the case, as given by the court, was
is earnestly submitted that the original petition of 00— there ever any suggestion or intimation that defendants’
tober 8, 1914, as amended by the amended petition 0f flagman had been guilty of a wilful or wanton act or had
January 4, 1915, does DOt state any cause 0f action wilfully or intentionally thrown the plaintiff off the train
against the defendants, and their general demurrer there- ,,. or caused him to fall therefrom. The Whole case, under
to should have been sustained. N the evidence and instructions, on the first trial, revolved

 la ii .
12 ~ "1 -
- ll 13
around the cucstion of whether defendants’ flagnian had _
1 1 id .1 f 1. id th t , ._, fendants, permitted to be filed, on February 4, 1916.
or mt not con 0"in t7 o necr iO'ence an i e arU'umen s , .
D 3 . . b O i C . f This second and last amendment was in these words:
of the attorneys for plaintiff and defendants respectively
were directed exclusively to this question. , “Now comes the plaintiff, Albert Copley, and by leave
, . . V. . i1 ‘ . ' ' ' ' 'n formi‘V to
l‘lic pleadings and issues, as mudo up on the first trial, l» Of the couit amends his petition herein, 1 con t-

. 1 , 5 the facts proven in said cause and states as follows:
remained unchanged at tho conmionccmcnt of the second 1‘, “That while the plaintiif was on the steps of the de-
trizil, hold in the months of January and February, 1916. 3' fondants’ car and holding both grab—irons, the flagman,

. ,. . - ‘ 70' f 11 def ndrints wilfullv and
Throughout the taking or testimony on that trial, both i an employs and agent 0 t e e c ’. v

‘ , > With much force pushed him from the said steps and
parties apparently continued to address themselves to the ‘- caused him to fall to the ground, and under the train, and
question of whether or not there was evidence of any nog— 3' injured as heretofore stated.”

. -- =4.
licenCo on the “irt of defend‘intr’ fl‘lO'Hl‘lli at the time ~ .
D I“ l _‘1 3 ( ’:’ 1L. ’ 1 1 . - Defendants not only reserved an exception to the fi1~
‘Hld on the occasion of t 10 neon eiit coni ) -iine( of. I t no - . . . .
L . . . I c . “ ing of this belutcd pleading but they promptly inter-
St'IWB of the tl'l‘ll was the no osition ever ‘1dV‘inced or ‘ . . . .
‘C’ C. L I p ‘ L posed a motion, sustained by aflidawts, to set as1de the
oven rcmotolv hinted at that the alleged act of the flag— . 7 7 . . _
_" ' . . ' swearing of the Jury and continue the cause to a future
man iii forcing plaintiir from the train was not a mere _ . . . . 7
' _ ‘ . term for trial. The action of the court iii overruling de-
uct oi negligence but a Wilfiil or intentional act on the . , . 7 . .
‘ . _ tendants 1110th11 so made to set 381ch the swearing of
part of tho flug‘nian. l\ot until all of the testimony had . _ .. . . .
‘ ‘ the Jury and continue the cause Will be argued in another
been introduced ‘iiid the 0188 ll‘ld been closed rind dcfend- . . . .
i c t c ' part. of this brief. That it was most erroneous and most
rints’ motion for ‘1 81'9m3t01'V instruction revio sl . . . , .
r i D . 1. .. ., ' '7 p u y _ pre'Judicnil to the defendants seems to us to go Without
made at the close of plaintiff’s testimony in chief, had - a
d - , saynig. Defendants at the same time, entered a general
boon ronowcd “nd overrule 'iiid not until much time hal - - - ~
“ ‘ C demurrer to plaintiff’s second amended petition and to
been consumed in the ire nr‘ition 'ind discussion ho - - - - . .
ff I I‘ c ‘ Of t ‘ the original petition and first amended petition, as fur-
instructions to bc 0 cred b Y the )arties ‘ind 0‘iven , x . . .
_ _ 5 I. C b by HM thor amended by said second amended petition. To the
court did the l‘iintiff throurrh his attorne s com r- - .
’ I: i 1 ' b 1 y ’ 8 f0 order of the court overruling this demurrer, the defend-
wqrd with the )cl‘it0( cann ti'it dcfeiid‘ints’ fl'rr 7 . . . ‘
t h (1 1 ff f L c cgnian ants excepted. We submit that this ruling of the court
h'id wilfully ms ct _ ‘iinti' rom the train. Th ' — .
c . 1 P C b > e see was wrong for the same reasons we have heretofore given
1 . . . . .
onri ‘inicndcd )etition em odvm this entirol i new - . . . . .
f 1'1 a 1 . y g fi 3 and in support of our contention that the original petition,
most extraorr. inarv com aint was rst tendered - - . .
fil 1 , 1 p 1, and of as first amended, failed to state a good cause of action,
fercd to be 9( ant over tie earnest ob'ection -
, J 0f d9 _, «,_‘ as well as for other reasons equally potent. The court
will observe that, just as the plaintiff had failed, in both

 - < ill ' “..__.“ d4— 3 ' Ao-bku‘f'vV‘u-r‘év’wéé‘il' 1):,»A,r;:~¢:.—rw—3“_"TTZ‘5‘&‘
. .1
i
' 14 i 15
his original and first amended petitions, to charge that v. . anomaly once, for 3 time 311d in death cases 011133 known,
the flagman, accused of forcing plaintiff from the train, but now no longer known to 0m 1a“.
ias ’It the time actind in the line of his duty and within The confusmn of thought involved in such an incon-
‘r c l b y ‘ n n a o
the real or apparent scope of his authority, so the plain— gruous combination of statements as those contained in
, c .
tiff failed in his second amended petition to incorporate the fluee pleadings presented on behalf of the plamtlff
such an allocation It is submitted that this allegation, is admirably described by the Supreme Court of Indiana
' o‘ - . . . Y .
in words or substance was, if possible, even more neces~ in the case of Louisville, IV. A. & C. Railway Co. v. Bryan,
I V , -
sary and indispensable in the last amendment than in 107 Ind. 01, S. C- 1 N. E- 30/, where “'111 be found the £01-
either of the two pleadings which preceded it. The mas- lowmg language:
' 3 - ‘ ' - ‘ wanton or wilful act of his .- a. ‘ ' .
teris um 91 answeiable fm the _ “The words ‘w1lful’ and ‘negligent,’ used in con-
servant, unless it be shown that such act was committed junction, have not always been employed with strict re—
bv the servant while acting in the discharge of duties de- , ,. gard for accuracy of cxpressmn. To say that an ingury
7'1 . him under his employment and within the resulted from the negligent and Wilful conduct of an-
‘0 Vlng upon . other is to alfirm that the same act is the result of two
actual or apparent scope 0'E 1113 authority as 511011 9111- exactly opposite mental conditions. It is to affirm in one
ployc. For wanton or wilful acts of a servant, not done breath that an act was done, through inattention—
b tl ‘ rvrint while engaged in the performance of his thoughtlessly, heedlessly—and at the same time pur-
y 1e se ‘ 0‘ posely and by design. It seems to be supposed that, by
. - - rh . ' 7 . .
duties, the master is never liable. Llie cases in Ixentucky coupling the words together, a middle ground between
so holding are abundant and too well known to require negligcnfce and wilfulness, between acts of nonfeasance
and mis easance may be arrived at. It is only necessary
' ' '~ v' , lthat the amendment of ’ . .~ . . . .
Cltatlon' It 1” fuitncr to be motor to say that the distinction between cases falling Within
February 4, 1916, 00111331115 110 Withdrawal 0f the allega- the one class or the other is clear and well defined, and
tions of negligence appearing in the original petition and cases 111 neither class are aided by importing into them
. ‘ ‘ "butes pertaining to the other Beach New 67 68 ”
amended petition previously filed. Hence, again constru- an“ ' ’