Murray v. Chesapeake & Ohio Ry. Co.

Opinion op the Court by Wm. Rogers Clay, Commissioner. Plaintiff, A. ~W. Murray, Sr., instituted this action against the defendants,. Chesapeake & Ohio Railway Company of Kentucky and the Chesapeake & Ohio Railway Company, to recover damages for personal injuries. A demurrer was sustained to the petition and the petition was dismissed. To test the validity of this ruling the plaintiff appeals. The petition is as follows: “Plaintiff states that on or about June 1, 1906, the defendant, the Chesapeake & Ohio Railway Company of Kentucky, a consolidated corporation composed of the Big Sandy R. R. Co., the Kinniconic & Freestone R. R. Co. and a consolidated company formerly known as Chesapeake & Ohio Railway Company of Kentucky, as .its constituent corporations, was created, organized and now exists under the laws of Kentucky; that said constituent corporation formerly known as Chesapeake & Ohio Railway Company of Kentucky was created and organized on or about [381] July 1, 1904, and composed of the Maysville & Big Sandy R. R. Co., Lexington & Big Sandy R. R. Co. and the Covington Short Route Railway & Transfer Co.; that the defendant, the Chesapeake & Ohio Railway Company of Kentucky, as successor of the Mays-ville & Big Sandy Railroad Company and of said Chesapeake & Ohio Railway Company of Kentucky, does now and at all times herein mentioned since its creation has owned and held a line of railway running along the Ohio river from Covington, Ky., over and along Front St. in the city of Maysville, Mason county, Ky., and through Gréenup county, Ky., to the city of Ashland, Ky.; that under-and by virtue of the- corporate powers obtained through the charter of the said Maysville & Big Sandy Railroad Company, the defendant, the Chesapeake & Ohio Railway Company of Kentucky on or about July 1, 1906, entered into a contract or lease with its co-defendant, the Chesapeake & Ohio Railway Company, a corporation created, organized and existing under the laws of Yirginia, to operate and manage for a term of years yet unexpired its said' line of railway from Covington, Ky., through said counties of Mason and Greenup to Ashland, Ky., and thereupon said Chesapeake & Ohio Railway Company, as lessee under said contract, took possession of said line of railway as operating agent and has since said time been continuously in possession and control of and has operated said line of railway subject to the paramount authority of its lessor and co-defendant, the Chesapeake & Ohio Railway of Kentucky. The plaintiff states that subsequent to the execution of said lease and prior to the injuries hereinafter mentioned, the defendant, the Chesapeake & Ohio Railway Company of Kentucky, undertook contrary to sections 203 and [382] 211 of the Constitution of Kentucky, to convey all of its said tangible property by general warranty deed to'its co-defendant, the Chesapeake & Ohio Railway Company, a Virginia corporation, but which deed of conveyance, plaintiff avers is and was ultra vires, null and void, and in no wise,affects the relations between said corporations under said lease. “Plaintiff states that on or about the-day of December, 1907, while he was upon the bridge crossing Little Sandy river in Greenup county, Kentucky, he was without fault on his part carelessly and negligently run into, upon and against by the locomotive engine and train of cars of the defendant, the Chesapeake & Ohio Railway Company, a Virginia corporation, whereby he was bruised and injured on and about his head, arms, legs and body and made to suffer great pain and agony of body and mind, was confined to his bed and was prevented from doing any work for the space of eight weeks, and was put to the expense of $35 in his efforts to be cured of said injuries. “Plaintiff states that the carelessness and negligence aforesaid was the joint and concurrent negligence of the said Chesapeake & Ohio Railway Company, its agents and servants and the said Chesapeake & Ohio Railway Company of Kentucky, its agents and servants, defendants herein. “Plaintiff states that his said injuries was caused by the negligence and carelessness of the defendant, its agents and servants in carelessly and negligently operating said train and cars attached thereto, and that by reason thereof he has been damaged in the sum of $5.000. “Wherefore plaintiff prays judgment against the defendants, the Chesapeake & Ohio Railway Com383 party of Kentucky and the Chesapeake & Ohio Bail-way Company in' the sum of $5,000, and all proper relief. ’ ’ It has been determined time and again by this court that in an action for personal injuries it is sufficient to charge in a general way that the injuries or death for which the recovery is sought was caused by the negligence of defendant. Plaintiff is not required to state the circumstances or details under which the injury was accomplished, in order to show that it was occasioned by negligence, or to state facts showing that he was not guilty of negligence, thus anticipating the defense. An allegation of the extent of the injury, or the manner in which it was caused, has always been considered, sufficient. (Davis’ Adm’r v. Ohio Valley Banking & Trust Co., 106 S. W. 844; Chiles v. Drake, 2 Metc. 146; L., C. & L. R. R. Co. v. Case’s Adm’r, 9 Bush 728; L & N. R. R. Co. v. Mitchell, 87 Ky. 327; L. & N. R. R. Co. v. Rains, 15 Ky. Law Rep. 423.) If, however, the negligence is specified, the pleader will be confined to the negligence relied on. (W. A. Gaines & Co. v. Johnson, 105 S. W. 382.) Furthermore, if plaintiff attempts to specify the negligence of defendant, he must state such facts showing negligence as constitute a cause of action. (Lexington Railwav Company v. Britton, 114 S. W. 295, 130 Ky. 676.) The rule laid down in Embry v. L. & N. R. R. Co., 18 Ky. Law Rep. 434, does not conflict with the doctrine that negligence may be alleged in general terms. In that case the plaintiff did not allege negligence in general terms, but attempted to specify the negligence. He based his right of recovery on the failure of defendant to warn him. Plaintiff’s own petition showed that he was a trespasser. This court proper [384] ly held that no sneh duty developed upon the defendant, and the petition did not, therefore, state a cause of action. In the case of Gividen’s Adm’r v. Louisville & Nashville R. R. Co., 17 Ky. Law Rep. 789, the plaintiff also attempted to specify the negligence of defendant. In that case plaintiff’s intestate was injured at a private crossing. The negligence charged against the defendant was its failure to cut the bushes and other undergrowth near its road so that one on the track might be seen; and that on account of the obstruction the deceased could neither see nor hear the train, and that the defendant failed to give signals and neglected to see deceased. This court held that the railroad company owed the decedent no duty, either to remove the bushes and other undergrowth, or to be on the lookout for her, or to give her any warning of the train’s approach. For this reason a demurrer was sustained to the petition. It will be seen, therefore, that the question does not turn upon whether or not the plaintiff is a trespasser or licensee; it depends altogether whether the negligence is alleged in general or specific terms. If the latter, no other negligence can be relied upon, and the facts alleged must constitute a cause of action. In our opinion, the allegations of negligence contained in the petition herein are sufficient. Under such allegations the plaintiff could recover if he established the fact that his danger was discovered iu time for the injury to have been avoided by the exercise of reasonable or. ordinary care on the part of those in charge of the train. (Hoskins’ Admx v. L. & N. R. R. Co., 17 Ky. Law Rep. 78; L. & N. R. R. Co. v. Wade, By, &c., 18 Ky. Law Rep. 549; L. & N. [385] R. R. Co. v. Tinkham’s Admx, 19 Ky. Law Rep. 1784; Dilas’ Admr v. Chesapeake & Ohio Ry. Co., 24 Ky. Law Rep. 1347.) It appears, however, from the petition that the Chesapeake & Ohio Railway Company of Kentucky, prior to the time of plaintiff’s injuries, transferred the control, possession and operation of its line of railroad, running through the county where plaintiff was injured, to the Chesapeake & Ohio Railway Company. After alleging this fact, plaintiff attempts to counteract the effect of the conveyance by charging that the deed was contrary to sections 203 and 211 of the Constitution of Kentucky, and was ultra vires, null and void. In our opinion this allegation in regard to the invalidity of the deed in question is simply a conclusion of law. No facts are alleged from which we could determine whether the allegation of the petition is true or not. We, therefore, conclude that the allegation of the petition upon this poiiit is insufficient. Having shown that the conveyance from the Chesapeake & Ohio Railway Company of Kentucky to the Chesapeake & Ohio Railway Company was made prior to the injuries complained of, and the allegations of the petition not being sufficient to show that the deed of conveyance was void, we are of the opinion that the petition fails to state a cause of action against the Chesapeake & Ohio Railway Company of Kentucky. The lower court, therefore, properly sustained the demurrer of the Chesapeake & Ohio Railway Company of Kentucky to the petition. ' The demurrer of the Chesapeake & Ohio Railway Company should have been overruled. Judgment affirmed.as to the Chesapeake & Ohio Railway Company of Kentucky, and reversed as to the Chesapeake & Ohio Railway Company, and cause remanded for proceedings consistent with this opinion.