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(181 Ky. 128)
direct orders of the defendant, or was conSCOTT v. CINCINNATI, N. 0. & T. P. RY. trolled by rules and regulations prescribed CO.
by the defendant. In other words, the effect (Court of Appeals of Kentucky. June 14, of the opinion was that the defendant could 1918.)
not be held liable for an injury due solely CARRIERS OM 306(1)-INJURY TO PASSENGER to the negligence of the Baltimore, Ohio & -DANGEROUS APPROACH TO TRAIN-OWN- Southwestern Railway Company. Upon a ERSHIP.
For breach of duty of carrier to furnish a reconsideration of the question, we have passenger safe approach to its train, he having reached the conclusion that the petition statto cross two tracks in going from station to ed a cause of action against the defendant, train, it is liable for his injury by train of which was using the same station facilities another using same station and coming on one of such tracks, without regard to which owned jointly with the Baltimore, Ohio & Southand controlled the station and tracks.
western Railway Company. The opinion erAppeal from Circuit Court, Boone County. roneously assumed that the Baltimore, Ohio
On rehearing. Granted, and judgment re & Southwestern Railway Company alone was versed.
negligent. The rule in such cases is stated For former opinion, see 178 Ky. 800, 200 as follows in 10 C. J. p. 882: S. W. 6.
"Two or more companies using the same sta
tion facilities are all under the duty of keeping 0. M. Rogers, of Covington, for appellant. the premises in a safe condition and free from J. M. Lassing, of Newport, N. E. Riddell, obstructions or dangerous instrumentalities. of Burlington, and Galvin & Galvin, of Cin as to passengers using the premises in con
One of such companies is under the same duty cinnati, Ohio, for appellee.
nection with the other roads that it owes to
its own passengers, and is bound to operate MILLER, J. The opinion in this case, safety; and such a company is liable to its own
its train with the same due regard for their reported in 178 Ky. 800, 200 S. W. 6, fully passengers for injuries caused by the negliand accurately stated the substance of the gence of the other company. A carrier using petition as follows:
a union depot is liable for a negligent failure "On November 12, 1915, plaintiff purchased condition, although the premises are under the
to keep it or the approaches thereto in a safe from defendant's agent at Erlanger. Ky.. a control of a receiver of the depot company." ticket entitling him to transportation from Erlanger to Cincinnati and return. He was car
See, also, 10 C. J. p. 880, $ 1316. ried on one of defendant's passenger trains to
The rule is stated in 4 R. C. L. p. 1252, as Cincinnati where he spent the day. In the afternoon he went to the Eighth street depot follows: in Cincinnati to board one of defendant's pas- "Where a carrier so operates its trains at a senger trains for the purpose of returning to station that a passenger is impliedly invited to Erlanger. Said depot was a regular stopping cross an intervening track in going to or leavplace for said train. While plaintiff was stand- ing his train, he is chargeable only with the ing on the platform the train stopped in front exercise of reasonable care to avoid danger, of the depot for the purpose of receiving and and is not necessarily guilty of contributory discharging passengers. Between the platform negligence in failing to stop, look, and listen and the third track on which the train stopped for an approaching train before crossing such were two other tracks on which the defendant track. He has the right to assume that the and other railroad companies, including the Bal- company will discharge its duty in making the timore, Ohio & Southwestern [Railway Com-way safe, and, relying on this assumption, may pany],' then operated passenger and freight neglect precautions that are ordinarily impostrains. To reach defendant's train it was nec- ed upon a person. When a railroad company essary for plaintiff to cross the two intervening stops a passenger train where other tracks are tracks. While plaintiff was crossing one of between it and the depot platform, the rights said tracks, the Baltimore, Ohio & Southwest- of people having business with such train, and ern Railway Company negligently caused one the duty of the company toward them, are the of its trains to move thereon and strike and same as if all the intervening space between injure plaintiff, thus rendering the approach to the depot and the train constituted the platdefendant's train dangerous and unsafe. His form, and it is negligence on its part to allow injuries were the proximate result of the de- another train to run between the passenger fendant's negligence in failing to provide him train and the station at which the passengers with a safe approach to its train, and the con- are being taken on or discharged." current negligence of the Baltimore, Ohio & Southwestern Railway Company in moving its This rule is but an application of the gentrain over said track at said time and place.” eral principle that a carrier of passengers
Upon the original hearing this court af- must exercise the highest degree of care in firmed the judgment of the circuit court, furnishing its passengers a safe approach to which sustained a demurrer to the petition, its trains, and of keeping its depot premises upon the theory that the petition was defec- in a safe condition and free from obstructive because it failed to alleged either that tions and dangerous instrumentalities. This the depot and tracks were owned or con- duty requires the carrier to protect its pasrolled by the defendant, and that the Balti- sengers not only from the negligence or mismore, Ohio & Southwestern Railway Com- conduct of its own agents and servants, but pany used them under a lease or other con- also from the negligence or misconduct of tract with the defendant, or that the move- other passengers, and of persons who are ment of the Baltimore, Ohio & Southwestern not passengers. Brooks v. Old Colony R. Railway Company's train was subject to the Co., 168 Mass. 165, 46 N. E. 566.
The fact that the dangerous instrumental- , v. Del. R. Co., 220 Pa. 507, 69 Atl. 1039, 123 ity was the moving train of another com- Am. St. Rep. 714, 14 Ann. Cas. 21; Leveret pany using the same station does not alter v. Shreveport Belt R. Co., 110 La. 399, 34 the rule or its application, and the fact South. 579; Brady v. Chicago G. W. R. Co., that the defendant did not control the move- 114 Fed. 100, 52 C. C. A. 48, 57 L. R. A. 712. ment of the train which constituted the dan- Rehearing granted, and judgment reversgerous instrumentality, either by lease or ed, with instructions to overrule the demurotherwise, cannot relieve the defendant rer to the petition. from this duty. The negligence consisted in the defendant's placing its passenger in a
(181 Ky. 76) dangerous position when its duty required it
MORGAN'S ADM'R v. LOUISVILLE & N. R. to place him in a safe position. Neither
CO.* can a carrier delegate to another the duty
(Court of Appeals of Kentucky. June 11, of seeing that the means of egress from its
1918.) terminal grounds are reasonably safe. Co
1. EXECUTORS AND ADMINISTRATORS O26(2) tant v. Boone Suburban R. Co., 125 Iowa,
- BOND OF ADMINISTRATOR – APPROVAL 46, 99 N. W. 115, 69 L. R. A. 982; Johnson SUFFICIENCY. v. Florida East Coast Ry. Co., 66 Fla. 415, An indorsement of approval by the court 63 South. 713, 50 L. R. A. (N. S.) 561, Ann. and made a part thereof was sufficient approval
a an Cas. 19160, 1210. These principles may be of the bond, under Ky. St. § 3838, providing said to be thoroughly established by the that the bond of an administrator shall be apcourts of many states.
proved by the court. In Kuhlen V. Boston & Northern Street
2. EXECUTORS AND ADMINISTRATORS w20(9)
-APPOINTMENT OF ADMINISTRATOR-ENTERRy. Co., 193 Mass. 341, 79 N. E. 815, 7 L. R.
ING ORDERS NUNC PRO TUNC. A. (N. S.) 729, 118 Am. St. Rep. 516, a pas- Where bond of administrator was approved senger on a subway train was injured in a by the court and properly recorded in the adrush of passengers to enter the defendant's ord evidence to authorize entry of an order of
ministrator's bond book, there was sufficient recThe defendant attempted to avoid lia- appointment nunc pro tunc, even after adminbility by showing that the subway and its istrator had started action in negligence case station were built by the Boston transit for damages for death of deceased, and even
though it does not appear whether the county commission and owned by the city of Boston; court was in session on such date. that its occupation thereof was under a writ- 3. EXECUTORS AND ADMINISTRATORS Ow20(9) ten contract with the Boston Elevated Rail- - ENTERING ORDER NUNC PRO TUNC – Noway Company, which it offered in evidence; TICE. and that the last-named company had the en- maintaining an action is not entitled to notice
A party against whom an administrator is tire management, charge, and control of the that an order appointing such administrator is subway, its stations and platforms. In re- to be entered nunc pro tunc in the county jecting this proof as immaterial, the court court, because only persons entitled to notice
in the first instance are entitled to notice of said:
entries nunc pro tunc. "The general principle has been established 4. APPEAL AND ERROR 1176(1)-REVERSAL that one who, though not strictly in control
-DIRECTING JUDGMENT. of a defective thing or dangerous place, yet Where verdict was for an administrator, uses it for his own benefit, or for his own pur- and defendant's motion for new trial was deposes invites another to enter it, may, if other nied, and the petition was dismissed on the elements of liability concur, be held responsible ground that there was no proper order appointto the latter for an injury caused by the de- ing the administrator, on reversal the Supreme fect or danger.”
Court will not direct that judgment be entered To the same effect, see McElroy v. Nashua on the verdict, where there is no evidence on
the merits before it. & L. R. Corp., 4 Cush. (Mass.) 400, 50 Am. Dec. 794; Frazier v. New York, etc., R. Co.,
Appeal from Circuit Court, Lee County. 180 Mass. 427, 62 N. E. 731; Union Depot &
Action by J. K. Hobbs, as administrator Ry. Co. v. Londoner, 50 Colo. 22, 114 Pac. of Bert Morgan, against the Louisville & 316, 33 L. R. A. (N. S.) 433; Chicago, etc:, Nashville Railroad Company. •Judgment for R. Co. v. Gates, 162 n. 98, 44 N. E. 1118: defendant, and plaintiff appeals. Reversed, Herrman v. Great Northern R. Co., 27 Wash. with directions. 472, 68 Pac. 82, 57 L. R. A. 390; L., N. A. & J. M. McDaniel, of Beattyville, and Ed C. O. R. Co. v. Lucas, 119 Ind. 583, 21 N. E. O’Rear and Hazelrigg & Hazelrigg, all of 968, 6 L. R. A. 193; Murray v. Lehigh Valley Frankfort, for appellant. Samuel M. Wilson, R. Co., 66 Conn. 512, 34 Atl. 506, 32 L. R. A. of Lexington, Wallace & Harriss, of Ver539; Great Falls & 0. D. R. Co. v. Hill, 34 sailles, Sam Hurst, of Beattyville, and BenApp. 'D. C. 312; Atchison, Topeka & S. F. R. jamin D. Warfield, of Louisville, for appellee, Co. v. McElroy, 76 Kan. 271, 91 Pac. 785, 13 L. R. A. (N. S.) 620, 123 Am. St. Rep. 134; Phil., CARROLL, J. This suit was brought by J. W. & B. R. Co. v. Anderson, 72 Md. 519, 20 Atl. K. Hobbs, as administrator of Bert Morgan, 2, 8 L. R. A. 673, 20 Am. St. Rep. 483; Tubbs against the Louisville & Nashville Railroad V. Michigan Central R. Co., 107 Mich. 108, Company, to recover damages for the death of 64 N. W. 1061, 61 Am. St. Rep. 320; Besecker | Morgan alleged to have been caused by the Om For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
negligence of the company. On a trial of the nexed assets in his hands unadministered. case there was a verdict for $10,000, but the This 13th day of February, 1915. J. K. Hobbs. trial court refused to enter a judgment on this
J. A. Shackelford." verdict, and on motion of counsel for the rail- That attached to this bond there was the road company dismissed the petition without following paper: prejudice, upon the ground that J. K. Hobbs, "To the Honorable Judge of the Lee County in whose name the action was brought as Morgan, deceased, aged 22 past, and Bert Mor
Court: I, F. W. Morgan, father of Farris administrator, had never been appointed gan, deceased, aged 17 past, both of whom administrator and consequently had no legal died domiciled in Lee county, Ky., respectively capacity to institute or maintain the action. request your honor to appoint J. K. Hobbs as From this judgment, the administrator pros-cedents and hereby waive my natural right to
administrator of the estate of each of said deecutes this appeal.
said appointment. F. W. Morgan [by his It appears that although the petition re- mark]. Witness: H. S. McGuire. Approved cited that J. K. Hobbs was appointed ad-by the court. This the 13th day of February,
1915. Green Kilburn, Judge.” ministrator of the estate of Bert Morgan by proper orders of the Lee county court on
He further testified that neither the order February 13, 1915, he was not, in fact, ap book nor the minute book of the Lee county pointed administrator on that date as shown court, on February 13, 1915, or before or since by any order or entry then made on the order that date, or until September 15, 1916, conbook of the Lee county court. It also ap- tained any order, minute writing, or direcpears that counsel for the railroad company tion relating to the appointment of Hobbs as discovered, soon after the petition was filed administrator of the estatě of Morgan; and that there was no order of court appoint- further, that there was no order, minute, or ing Hobbs administrator, and by appropriate writing on either of said books showing that pleas, as well as by answer, the railroad the Lee county court was in session or was company denied that Hobbs had been duly or held on February 13, 1915. legally, or at all, appointed administrator; It appears, however, that on September 15, but it seems that counsel for the admin- 1916, the following order was entered on the istrator did not discover that there had been order book of the Lee county court: no order appointing him until during the
"It appearing to the satisfaction of the court
that on the 13th day of February, 1915, J. trial of the case in September, 1916, at which K. Hobbs was appointed as administrator of time the administrator tendered an amended the estate of Bert Morgan, deceased, and that petition, filing therewith a certified copy of on said date said Hobbs, together with J. A. an order of the Lee county court, made and Shackelford, entered into and executed bond
to and with the commonwealth of Kentucky in entered on the order book of the court on the penal sum of $1,000, and said Hobbs took September 15, 1916, showing the appointment the oath as prescribed by law, and it further of Hobbs as administrator of Morgan. The appearing that by oversight the order of the record is in a confused condition, and it aforesaid and accepting the bond aforesaid was
court appointing said Hobbs as administrator does not clearly appear whether this amend- not placed on the order book of said county ed petition was filed or not, but evidently court, it is therefore ordered by the court that it was treated by the court as having been said order appointing said Hobbs administra
tor aforesaid and accepting said bond as such filed because evidence in support of it was be made and placed on the order book of said heard by the court, and this evidence shows court on this date and to be effective as of Febthe following state of facts:
ruary 13, 1915. Green Kilburn, Judge." William Porter, deputy clerk of the Lee
And that on September 19th the following county court, testified: That there was in order was entered on the order book of the his office a public record book, the title of court: which was the “Administrators' Bond Book.”
“Whereas, it appears by record and other That in this book there was recorded on evidence to the satisfaction of the court that February 13, 1915, the following bond:
on the 13th day of February, 1915, the fol
lowing order was made, written out, and sign"Whereas, J. K. Hobbs has been appointed ed by the judge of this court in substance and by the Lee county court administrator of Bert ordered to be entered: ‘On motion of Frank Morgan, deceased intestate, now we, J. K. Morgan, in writing, and also by his presence Hobbs, administrator, J. A. Shackelford, sure- and oral motion in court, it is ordered by the ty, do hereby covenant to and with the com- court that J. K. Hobbs be and he is hereby monwealth of Kentucky that the said J. K. appointed as administrator of the estate of Hobbs will well and truly administer the goods, Bert Morgan, deceased, and said J. K. Hobbs chattels, credits, and effects of the said in- being present in open court accepted said aptestate according to law, and will further make pointment and thereupon entered into and aca just and true account of all his actings and knowledged bond to and with the commonwealth doings therein, and will well and truly make a of Kentucky in the penal sum of $1,000, together proper distribution of any surplus money, ef- with J. A. Shackelford, his surety, which bond fects, and rents which may come to his hands, was accepted and approved by the court and or to any one for him, by color of his office, thereupon said J. K. Hobbs took the oath preto the persons entitled thereto. If it shall scribed by law.?” hereafter appear that a last will and testament was made by deceased and the same be proved The railroad company, by its counsel, onand recorded, we further covenant that the jected to the introduction of this evidence,
, der his letters of administration, and that he and after its admission moved the court to will account with any, pay and deliver over to instruct the jury to find for it, but the objec
and then the trial of the case progressed with dice; and, this being so, the first question to
cited on this paper was “approved by the
In section 3838 of the Kentucky Statutes it “The court is of opinion, and finds as a fact is provided that: from the pleadings, exhibits, and proof, that
The bond of an administrator "shall be subthe plaintiff, J. K. Hobbs, was never duly or scribed by the principal and sureties, approved legally or at all appointed or qualified as ad- by the court, attested by the clerk of the court, ministrator of the estate of Bert Morgan, de- and carefully kept by the latter in his office in ceased, and that no order appointing or qual- a book to be provided for that purpose.' ifying him as such administrator was ever It should further be noted that this bond, made or entered by the Lee county court, and on its face, recited that: that the plaintiff, J. K. Hobbs, had no legal capacity to institute or maintain this action, and "Whereas, J. K. Hobbs has been appointed it is therefore ordered, determined, and ad- by the Lee county court administrator of Bert judged that the verdict' returned by the jury Morgan, deceased intestate, now, we, J. K. be and the same is set aside, and that the de- Hobbs, administrator, and 'J. A.' Shackelford, fendants' plea in abatement be and the same surety, do hereby covenant. is sustained, and the plaintiff's action be and it So that there was of record, in the proper is dismissed without prejudice, and that the de- record book of the Lee county court, a bond fendants Louisville & Nashville Railroad Company and Lexington & Eastern Railway Compa- reciting that Hobbs had been appointed adny recover of plaintiff their costs herein expend- ministrator, which bond duly executed and ed, for which they may have execution, to all of approved by the court fulfilled all the rewhich rulings of the court the plaintiff objects and excepts, and prays an appeal to the Court quirements of the statute. of Appeals, which is granted. And the court be
The law as laid down by this court in a ing advised as to the defendants' motion and number of cases in respect to the entry of grounds for a new trial and supplemental mo- nunc pro tunc orders is that such an order tion and grounds for a new trial, herein overrules the same on the merits of the case, to cannot be made from the recollection of the which ruling of the court the defendant ob- court, or unless there is something shown jects and excepts and prays an appeal to the by the records of the court that will enable Court of Appeals, which is granted. And thereupon came the plaintiff and renewed his the court, or the judge thereof, to supply the motion to enter a judgment on the verdict missing order by nunc pro tunc order. Conn heretofore returned by the jury herein, and v. Doyle, 2 Bibb, 248; Lynch v. Reynolds, 6 the court being advised overrules said motion Bush, 547; Vandever v.. Griffith, 2 Metc. and declines to enter a judgment on said verdict, to which rulings of the court the plaintiff objects 425; Montgomery v. Viers, 130 Ky. 694, 114 and excepts and prays an appeal to the Court S. W. 251; Kendrick v. Williams, 157 Ky. of Appeals, which is granted.”
767, 164 S. W. 72. On this appeal, it is the contention of the
In Ralls v. Sharp, 140 Ky. 744, 131 S. W. appellant administrator that the court com- 998, the practice in relation to nunc pro tunc mitted error in refusing to enter a judgment
orders was thus stated: in conformity to the verdict and in dismiss- ceptions to it, that when an order or direction
"The general rule is, although there are exing the action without prejudice, while it is of court had been omitted from the record by contended on behalf of the railroad com- the inadvertence or mistake of the clerk or judge, pany that the rulings of the court in these the steps necessary to have the omitted order
and there is record evidence showing that all respects were free from error. It is appar- or direction entered were duly made and taken, ent that unless Hobbs was appointed adminis- and by a reference to this record the court with trator of Morgan he had no authority to in-out any other information or evidence can know stitute or maintain the action, and therefore tered, it may from this record evidence enter, as
what judgment or order was intended to be enit should have been dismissed without preju- of the date when it should have been entered,
what is called a nunc pro tunc order or such court. In holding that the county court had order as would have been entered except for no authority to make the nunc pro tunc order the omission. In other words, the court may do that which except for inadvertence or mistake reciting that the bond had been "accepted and would have been done. In making such entry approved,” the court noted the fact that it was the court is only correcting its own omission essential to the validity and force of the or mistake, or the omission or mistake of its clerk. It is not the making of a new order or bond that it be not only signed and delivered direction, but the new entry of an old order or by the sureties, but accepted and approved direction; it is merely placing the parties to the by the court, and said: record in the condition the court intended they should be."
"It thus becomes apparent that execution of
the bond, though filed and kept by the clerk, af Applying the rule of law as stated to fords no evidence of the other essential and inthe undisputed facts of this case, it is at and the bond was accepted by the court.
dependent fact that the sureties were approved
So once apparent that in entering the nunc pro that as there was not at the time entered of tunc order showing the appointment of Hobbs record an order of court approving and acceptas administrator the judge of the Lee county liable for default of the sheriff only, if at all, in
ing the bond, appellees (sureties) can be made court was not depending on his memory, or virtue of the order of September 23, 1889." the recollection of any other person, but up- And further said: on the Administrators' Bond Book, a public "The statute in force when the alleged bond record in the clerk's office of the court of was executed required each county judge to aswhich he was judge, which showed that on certain and determine the solvency and sufficienFebruary 13, 1915, Hobbs had been appointed and acceptances, to make and cause an order
cy of county levy bonds, and, in case of approval administrator of Morgan. With this record showing the fact to be entered of record. It before him, the judge could not have any was, besides, his duty to examine the order book doubt in his own mind, nor could any one result of negligence of the county judge * * *
and see the order was duly entered. But, as else have any doubt, that in fact and in in failing to have the order accepting the bond truth Hobbs had been appointed administra- entered of record, if it ever was indeed accepted, tor on February 13, 1915. Indeed, it would there was no way to obtain remedy for default
of Sheriff Kibbee against his sureties, without be difficult to find a state of facts that pre- such an order as was attempted to be made Sep. sented more convincing record evidence that tember 23, 1889. So that the county judge had the court had taken action in respect to a a personal interest in making that order wherecertain matter than the evidence afforded by then liable, and release himself from possible
by to render sureties of Kibbee, not so before, this public record book, and if the entries liability. In our opinion the rule should be on his book did not authorize the making of strictly applied in this case." the nunc pro tunc order, there could scarcely It will be at once observed that the facts be found any record evidence that would of that case were, as the court said, so exauthorize the making of such an order. ceptional as to call for a strict compliance
The record evidence upon which this nunc with the rule that a nunc pro tunc order canpro tunc order was made was equally, if not not be entered in the absence of record evi. more, convincing than the record evidence dence upon which to rest it, and it is further upon which the nunc pro tunc order was apparent from the citation taken from the made as set forth in the case of Ralls v. opinion that the court was largely influenced Sharp, supra, or the record evidence upon in ruling that the county judge was not warwhich the nunc pro tunc order described in ranted in making the nunc pro tunc order Chester v. Graves, 159 Ky. 244, 166 S. w. by the fact that the judge making the order 998, Ann. Cas. 1915D, 678, was made, or had a personal interest in holding the surethe record evidence upon which the nunc ties bond in order that he might thereby espro tunc order was made in Rogers v. Bigg- cape liability for his own negligence in failstaff's Ex'r, 176 Ky. 413, 195 S. W. 777. ing to make, in proper time and manner, the Nor is the practice that was approved in order accepting and approving the bond. these cases in conflict with the rule laid But there are in this case no exceptional down in Boyd County v. Ross, 95 Ky. 167, or any circumstances that would call for the 25 S. W. 8, 15 Ky. Law Rep. 520, 44 Am. same strict application of the rule applied in St. Rep. 210, when the opinion in that case the Boyd County Case. On the contrary, all is carefully considered. In that case it ap- the circumstances surrounding the transacpears that Kibbee, sheriff of Boyd county, tion would influence us, if necessary, to give executed, with his sureties, a bond condi- to the rule upon which nunc pro tunc orders tioned, according to law, for the collection may be made a liberal application, in order of the county levy of Boyd county. It ap- that the ends of justice might not be depears, however, that this bond was not, at feated by the failure of the county judge to the time of its execution, approved or ac- perform what may be described as the mere cepted by the court, but several months ministerial duty of entering an order on his thereafter the judge of the county court en- record book that would be merely a duplicate tered a nunc pro tunc order on his order of what he had already done in his official book bearing the same date as the execution capacity in accepting and approving the bond of the bond which recited that Kibbee and made by Hobbs as administrator as shown by his sureties had executed the sheriff's bond the bond and minute made by the page at