
    Blackburn, Executor v. Louisville & Nashville Railroad Company.
    (Decided February 29, 1924.)
    Appeal from Grant Circuit Court.
    1. Railroads — Owner Not Liable on Causes of Action Arising During Federal Control. — The corporate owner of a railroad is not liable for any causes of action arising out of the operation of the railroad by the government during federal control, and there was not a divided responsibility during such control between such owner and the government agency that was operating the railroad.
    2. Evidence — Judicial Notice that Railroad Under Federal Control at Certain Time. — The court must judicially know that the Louisville & Nashville Railroad was in the possession of the United States government and was operated by it through the Director General of Railroads in September, 1919, pursuant to Act Cong. Aug. 29, 1916 (U. S. Comp. St. section 1974a), and others of later date.
    3. Railroads — Motion to Make Director General of Railroads and Agent Defendant to Action Properly Denied. — Where action was brought against a railroad for injuries received when the road was under federal control, the court properly denied a motion to make the Director General of Railoads and Agent a party defendant to the action, since to have sustained the motion would have made it appear that there was a joint liability, and that either of the defendants might have been liable in damages.
    4. Railroads — Motion to Substitute Director General as Party Defendant Not Proper Practice. — Where action was brought against a railroad which should have been brought against Director General of Railroads, an oral motion to substitute the Director General as defendant was not the correct method, but plaintiff should have filed an amended petition substituting the name of the Director General in place of the railroad company.
    DICKERSON & HOGAN for appellant.
    B. D. WARFIELD, MOORMAN & WOODWARD, De JARNETTE & HARRISON and BECKHAM, HAMILTON & BECKHAM for appellee.
   Opinion of the Court by

Judge Robinson

Affirming.

In September, 1919, J. J. Leary, a citizen and resident of Grant county, Kentucky, was struck and seriously injured by a work train on tbe side track of tbe L. & N. Railroad Company at Zion Station. It appears that tbis track lay between tbe main track of tbe road and tbe depot, and it was necessary for passengers and tbe public to cross it in passing to and from tbe depot, and that for a number of years tbe public bad been accustomed to use tbis siding and travel upon it. Just before be was struck by tbe work train, Leary, desiring to speak to an engineer wbo was in bis engine on tbe main track and opposite tbe depot, started across in bis direction and apparently not seeing tbe work train on tbe siding— wbieb he claims was giving no signal of any kind — was seriously injured.. Suit for damages in tbe sum of $5,-000.00 was instituted by bis attorneys, and while tbe litigation was pending, Leary died, and tbe action was revived in tbe name of H. M. Blackburn, executor of J. J. Leary, deceased. A general demurrer to tbe petition of tbe plaintiff was interposed, but an answer was filed while this demurrer was pending, and no ruling was had upon it. The answer contained a denial of the allegations in this petition generally and specifically, but alleges contributory negligence on the part of the plaintiff; and no reply was ever filed controverting the averments of the answer.

The case having been set for trial on the 19th of October, 1920, plaintiff entered an oral motion to make John Barton Payne, Director General of Railroads and Agent, a party defendant herein, to which the defendants objected and they were sustained by the court. The case was continued a number of times, and finally on the 10th of February, 1922, the following order and judgment was entered:

“H. M. Blackburn, executor, v. L. & N. Railroad Company. This case coming on for hearing and the court being advised, the petition is dismissed and defendant will recover its costs herein expended,”

from which order and judgment this appeal is prosecuted.

From the transcript it would appear that appellant, realizing that the L. & N. Railroad was under the control of the Director General of Railroads, endeavored by an oral motion instead of an amended petition to have such Director General made a party defendant in the action originally instituted. In other words, from the motion it would appear that it was contemplated that the corporate defendant should remain in the case as such, and that the Director General would simply be an alternative defendant. Apparently the court could have done nothing other than sustain the appellee’s objection to this motion, as it has. been settled beyond question by opinions of this court and of the Supreme Court of the United States that the corporate owner of the railroad is not liable for any causes of action arising out of the operation of the railroads by the government during federal control; and also-that there was not a divided responsibility during such control between such owner and the government agency that was operating the railroad.

In Commonwealth v. L. & N. Railroad Company, 189 Ky. 309, the court said:

‘ ‘ The effect of federal control was to divest the railroad companies of the possession of their property and to place its entire custody and control and the operation and maintenance thereof in the federal government through its Director General of Railroads.”

Also:

“The Federal Control Act contemplated one control, one administration, one power for the accomplishment of the one purpose, viz.: the complete possession by governmental authority to replace for the period provided the private ownership theretofore existing.”

Attorneys for appellant contend that there is nothing in the record showing that the Director General was operating the L. & N. Railroad at the time this suit was filed; and unless this court will take judicial notice of that fact, the judgment was clearly erroneous; and they further contend that the court cannot take judicial notice that the Director General was in possession and control of the railroads at the time of the accident; but as the petition alleging the injury was filed in September, 1919, this court must judicially know that appellee was not occupying its railroad at that time and its properly was then in the possession of the United States government and was operated by it through thte Director General of Railroads, pursuant to an act of Congress, August 29, 1916, and others of later date.

This court has decided in numerous cases that an action cannot be maintained against a corporate owner for anything growing out of the operation of a railroad during federal control. See L. & N. Railroad Company v. Haverly, 194 Ky. 152. It would, therefore, necessarily follow from what has been stated that neither Leary in his lifetime nor his executor after his death had any cause of action whatever against the appellee for the injury Leary sustained in September, 1919, while the railroad was being operated by the government. It is also further argued in appellant’s brief that the lower court erred in refusing to grant his motion to substitute Payne, Director General of Railroads and Agent, as the defendant to tbe action. If tbis bad been bis motion, a ratber different question would be presented; but on page 12, transcript, we observe that bis motion was not to substitute tbe Director General for tbe corporate defendant but simply to make Jobn Barton Payne, Director General of Railroads and Agent, a-party defendant herein. In other words, it would appear that in appellant’s motion be contemplated that tbe corporate defendant should remain in tbe case as such and that tbe Director General would be simply an alternative defendant. However, tbe question lias been well settled by opinions of tbe Supreme Court and tbis court that tbe corporate owner of tbe railroad is not liable for causes of action arising out of tbe operation of tbe railroad by tbe government during federal control. See U. S. & Northern Pacific Railroad, et al. v. State of N. Da., 250 U. S. 135; Commonwealth v. L. & N. Railroad, 189 Ky. 309; Mo. Pac. R. Co. v. Ault, 256 U. S., 554.

To have sustained tbis motion, even if it bad been properly made, would make it appear that there was a joint liability and that either of tbe defendants might have been liable in damages to appellant.

However, in passing upon this case tbe court feels, regardless of other contentions, that tbe manner of making tbe motion relative to tbe substitution of Jobn Barton Payne, Director General of Railroads, a party defendant was wholly improper and unavailing.' It appears that it was made orally, which fact is admitted by appellant’s counsel; and if tbis was accepted, as tbe proper procedure, it would cause endless confusion and serious injustice to litigants, conceding, as it would, tbe propriety of simply suggesting to tbe court at any time that tbe wrong party bad been sued, and substituting without more ceremony tbe name of any other defendant ■appearing expedient or proper to counsel. It appears that tbe correct method would have been to file an amended petition substituting tbe name of John Barton Payne, Director General of Railroads, in tbe place of tbe L. & N. Railroad Company, against whom a judgment for damages — if one were obtained — would have been available. Therefore, we think tbe action of tbe court in dismissing tbis petition was entirely proper.

Tbe judgment is affirmed.  