
    Case 50 — Action to Recover Damages fob being Ejected from Defendant’s Train —
    Jan. 14.
    Louisville & N. R. R. Co. v. Jordan.
    ARREAD FROM HOPKINS CIRCUIT COURT.
    Judgment for Plaintiff and Defendant Appeals.
    Reversed.
    Carriers — Agreement of Conductor to put Infant Passenger off at Destination — Liability for Permitting to Leave Train- Before Reaching Destination — Amendment of Petition — Excessive Verdict — Appearance.
    1. The promise of a conductor to put off ¡at her destination a passenger eight ye^rs of .age did not make it his duty to act as her ¡special attendant, to -see that she did not leave her seat, and therefore the mere fact that one who was not identified as the conductor assisted her from the train before she reached her station does not render the carrier liable.
    2. As the- original petition relied for recovery solely upon the ground -that defendant forcibly ejected plaintiff from its train, ■and her testimony was to ¡that effect, it was error, after the evidence was ¡all in, -to permit ¡th ■ filing .of .an amendment alleging that defendant had negligently permitted her to get off the train, especially ¡as ¡there was no evidence on which to base the amendment, ¡and, if there had been, ¡it would not have supported a claim for damages.
    3. A verdict for $250 was grossly excessive, as plaintiff was detained only a few hours, during which time she was at the home of the station policeman, where she played with his children, and therefore could not have suffered great mental distress.
    4.Defendant corporation, by prosecuting an appeal, entered its .appearance, so that, on the return of the case to the trial court, that court will have jurisdiction of defendant’s person, even though defendant’s objection to the jurisdiction on the former hearing should have been sustained.
    GORDON & GORDON, fob appellant.
    SYNOPSIS.
    1. The Hopkins circuit court had no jurisdiction to try this case, because .plaintiff was a non-resident of the county, and her alleged injury occurred in Christian county, .and the “residence of the carrier” is in Jefferson county. The objection to the jurisdiction should have been passed upon by the lower court, as it w.as' properly raised for his consideration by a plea to the jurisdiction; the lower court refused to pass on the question as iit ought to have done and left the question to the jury, which ignored it. Willis v. Roberts, 90 Ky., 125; sec. 73 of the Code of Practice; Sherrill v. Railroad Co., 89 Ky., 302, sec. 66 of the Code of Practice; Harper v. Railroad Co., 90 Ky., 363, sec. 51, ss. 4 of Code of Practice; K. M. S. P. Co. v. Logan, 90 Ky., 366.
    2. The affidavit of next friend is defective. C. & C. Bridge Co. v. Brennan, Sup. Ct., 16 Ky. Law Rep., 126.
    3. Our motion for a bill of particulars should have been sustained, an£ plaintiff should have been compelled to fill blank in the petition.
    4. On our motion immaterial .and injurious matters should have been stricken from the petition.
    5. Over our objection agent Davis was allowed to testify as to a special contract alleged to have been made with him for the carriage of plaintiff, without qualifying him as agent for that purpose, or had power to make such a contract; this was improper in the first instance, and when it ’afterwards appeared by uncontradicted _ evidence that„he had no such power, then the court should have excluded that- matter from the .consideration of the jury.
    6. As there is .absolutely no proof of either damage or injury to .the plaintiff, he.r person, .rights, or .property, our motion for a peremptory instruction should have been granted, and isuch instruction given.
    
      7. Because the trial -court allowed the plaintiff, over our objection to file -an amendment to .the petition, after all the-evidence on both sides was heard and the case ready for submission to the jury, in which 'amendment, it is set forth that the alleged infraction of plaintiff’s rights occurred in a manner entirely different from that originally alleged. The former petition alleged a willful and forcible ejection of plaintiff, and the amendment alleged that we negligently allowed her to leave the train of her own accord.
    8. The acts of agents of the .defendant in promising .if they .did promise to care for the comfort or safety of the plaintiff specially made without consideration and purely from motives of accommodation, do not render the c.ompany liable in damages, even if .damage results from a negligent breach of those promises, 30 S. W. Rep., 153; 32 S. W. Rep., 42; 33 S. W. Rep., 585.
    9. We cite the court to the similar ease of Gage v. 111. Cent. R. Co., 21 Southern Rep., 657a, Mississippi where it is held that no liability on .the .part of the defendant company arose under facts there stated to some extent like those in this appeal.
    EDWARD W. HINES, toe appellant.
    H. W. BRUCE, GORDON & GORDON, oír counsel.
    POINTS AND CITATIONS.
    1. The Hopkins circuit ’ court had no jurisdiction unless ■plaintiff resided in Hopkins county. Sherrill v. Chesapeake, &c., R. Co., 89 Ky„ 302.
    2. The domicile of an infant child follows -that of her widowed mother, and as plaintiff’s mother resided in Nashville, Tenn., that was .also the place of plaintiff’s residence. Lamer V. Micon, 112 U. S., 452; Mills, Guardian, v. City of Hopkins-ville, 11 Rep., 164; De Jarnett v. Harper, 45 Mo. App., 415.
    3. Any agreement which the conductor may have made to give plaintiff .special attention was not binding on -the company. -Sevier v. Railroad Co., 61 Miss., 8; Missouri, &c., R. Co. v. Kendrick (Civ. Ap. Texas), 32 S. W., 42; Nunn v. Georgia Railroad, 71 Ga., 710; Gage v. I. C. R. Co. (Miss.), 21 Southern Rep., 657.
    4. The court erred in admitting testimony .as to a special contract with the ticket agent, there being no allegation of such a contract.
    5. It was error to permit an amended petition to be filed after all the evidence was in.
    
      6. The count erred -in instructing the jury that plaintiff was entitled to recover if defendant negligently suffered her to get of the train.
    7. The verdict is excessive, as plaintiff :at mo-st was entitled to only nominal damages.
    C. J. WADDELL, W. J. COX and CLIFTON J. PRATT, for appellee.
    The plaintiff, Mattie Jordan, is an infant eight years of age, ■and resides with her married si-ster in Hopkins county, Ky. Desiring to visit her mother who resides in Nashville, Tenn., her brother-in-law, Thomas Warren, who had charge of her, ■saw the .agent of defendant at Morton’s Cap .in Hopkins Co., where he resided -and the -agent assured him .that the child would be safe in the conductor’s charge, and no fear of dan- ■ ger could be reasonably anticipated. The ¡agent on selling the ticket marked the word “Links” on it so as to give notice where the .child was to be put off .the train. ' The conductor admits that Warren put the child in his car© and stated that he desired her put off at “Links” which is a station in Nashville. .She was safely put on .the train under these circumstances, and the conductor had notice of her seat in the ear as well as the point on her destination. After the train passed Hopkinsville and was reaching Pembroke, the conductor discovered that Mattie was missing and telegraphed back to- the agent at Hopkinsville. In the meantime the agent at Hopkins-ville had discovered the child on the platform alone -and crying. She was taken in charge by a policeman who carried her to his house -and pacified her by-.placing her .in company with Ms own child. She remained with him until midnight, when she was sent on the night -train to Nashville, reaching that city about two -o’clock .at night. There was no one to receive her when the train arrived. A policeman finding her alone and crying, took her in charge, remaining with her ,a half hour or more when her brothers eajme and carried her to her mother. She says the conductor put her off and pointed him out on the .trial as the man. He testified he did not put her off and did not know when she left the train. When the evidence was completed for appellee, the court permitted an amended ■petition to be filed, setting up in substance that the defendant at the time and place mentioned in the petition, negligently put her off -at Hopkinsville, and negligently suffered her to get off the train at that place. The jury awarded her $250 in damages. We claim that the damages are not excessive .and ■are compensatory only.
    
      AUTHORITIES CITED.
    Civil Code, 134; 83 Ky., 416; Coddington- v. Brooklyn, &e., R. R. Co., 102 N. Y., 66; Union Pac., R. R. Co. v. Port, 17 Wall. U. S., 553; Patterson R. An. Law, 231, sec. 236; Moreland v. Boston R. R. Co., 141 Mass., 31; Sandham v. Ckicago R. R. Co., 38 Iowa, 88; 15 B. M., 377; 7 Busk, 680; 14 Busk, 494; 7 Busk, 617; A. & E. Ency. of Law, vol. 2, p. 750 and cases cited.
   Opinion op the court by

JUDGE BURN AM —

Reversing.

This action was brought in the Hopkins circuit court by Mattie Jordan, an infant eight years of age, by next, friend, against the Louisville & Nashville Railroad Company. She alleged that she took passage on one of the defendant’s trains at Mortons Gap, a station in Hopkins county, for Nashville, Tenn., placing herself under the special care of the conductor, and that when the train arrived in Hopkinsville, Ky., the defendant, through the gross negligence of its servants in charge of the train, “wrongfully, forcibly, ■ and in violation of her rights as a passenger, put her off of the train at Hopkinsville,” Where she 'was detained for several hours, awaiting the arrival of the next passenger train for Nashville, and that she did not arrive at the point of her destination until about 2 o’clock at night, — several hours after the time when she would have arrived if she had been carried through on the train on which she took passage, — and that by reason thereof she had suffered great mental and physical pain ■and anguish, and prayed judgment for $1,500. The defendant by its answer, alleges that the mother of plaintiff resided in Nashville, Tenn., and that plaintiff resided with her, and that by reason thereof the Hopkins circuit court had no jurisdiction, of' appellee’s alleged cause of action. It further denied that it put plaintiff off its train, either forcibly or otherwise.' A trial upon the issues resulted in a verdict for appellee for $250.

Appellant moved for a new trial upon several grounds: First, because Thomas Warren, the next friend in whose name the suit was instituted, was permitted to testify that when he purchased the ticket at Hortons Gap he informed the local ticket agent that plaintiff was a small child, and asked him if there would be any danger of sending her by herself, and that he answered, “No,” and informed him to “put her on the train, and tell the conductor where to put her off at, and that she would get there all right,” and that he told him, so as to avoid any mistake, to write on the ticket the name “Links” (this being the station in Nashville where she wished to get off), and that when the train came in he put plaintiff on, and told the conductor to put her off at Links, and that he said “All right.” Another ground relied on for a new trial is that the court erred in allowing the plaintiff, at the conclusion of the testimony, to file an amended petition in which it was alleged that the defendant, at the time and place mentioned in the original petition, and under the circumstances therein stated, negligently put her off the' train at Hopkinsville, “and negligently suffered and permitted her to get off the train at that place,” and that the court instructed the jury that if plaintiff’s- servants- in charge of the train put plaintiff off, or negligently suffered • her to get off, the train at Hopkinsville-, they should find for plaintiff. And they further complained that the damages allowed by the jury were excessive, -and given under the influence of passion and prejudice. The motion embraced, in addition to the grounds recited, several others, which we do not deem it important to consider.

The facts developed by the testimony are, in substance, that the mother of appellee, Hattie Jordan, was a widow residing in Nashville, Tenn.; that some time in July she sent Mattie to the home of Thomas Warren, who had married her older sister, • and resided in Hopkins county, to live with them and assist in taking care of their baby; that, after residing with her sister for about two months, her mother wrote to Mrs. Warren to send her home; that, in conformity with the request, Warren bought her a ticket and pat her upon the regular passenger train for Nashville, which left Mortons Gap at about half past 4 o’clock in the afternoon on the 16th of September; that he called the attention of the conductor of the train to her, and requested that he should see that she was put off at Links Hotel, a station in Nashville; and that the conductor assigned her to a seat, and promised to put her off at the station indicated. The plaintiff in response to the question as to how she came to stop at Hopkinsville, responded “‘that the 'conduct- or, who wore a blue suit of clothes, put her off, and also took off her basket, containing the clothes which she was carrying;”-but she failed to identify the conductor, when her attention was called to him, as the man who put her off at Hopkinsville, and testified on cross examination-that her sister had told her to say that she had been put off the train by a man Who wore blue clothes. Her testimony is hazy and unsatisfactory throughout. The conductor testifies that Warren brought the plaintiff on the train when he arrived at Mortons Gap, and told him that he wanted her put off at Links station, in Nashville; that soon after leaving Hopkinsville, he discovered that she was not on the train, and that he stopped the train at the first station, and sent a telegram to the agent at Hopkinsville, asking him to take care of plaintiff and send her to Nashville on the next train, and that he received a message from the depot -agent that he would do so; that when the train arrived at Hopkinsville a number of people got off, among ■whom were several children, but that he did not notice that plaintiff was one of them; that-he did not promise to take any charge of plaintiff, except to see that she was put off at Links station, in Nashville; and that he assigned her to a seat, and told her to sit there until they arrived in Nashville. It further appears that appellee was put in charge of the station policeman during her stay in Hopkinsville; that he took her. to his residence, near the depot, and gave her her supper; and that she played with his children some three or. four hours, until the arrival of the next train, which took her to her destination. Beyond Lhe inconvenience and annoyance of the delay, it appears that no harm occurred to the plaintiff. There is nothing in the testimony which conduces to show that there was any understanding or agreement, either with the ticket agent or the conductor, that plaintiff should receive any special attention or care whilst on the train. Neither of them were informed by Warren that plaintiff did not have sufficient intelligence to occupy her seat during the journey. All that was asked by Warren, or promised by the conductori was that he would see that appellee was put off at. Links station, after the arrival of the tiain at Nashville. This was important, because there were two stations at Nashville and the friends of appellee expected to meet .her at Links station. The law required of appellant that it should exercise the highest degree of care to safely transport appellee to her point of destination. But this duty did not require that appellant's conductor should act as a special attendant to the plaintiff during the journey, to see that she did not leave her seat. He had a right to presume that the friends and relations of appellee would not have consented to her going alone upon such a journey unless she was possessed of sufficient intelligence to obey the instructions given lier to occupy her seat until her destination was reached. His duty was to . see after the comfort and safety of the passengers generally, and not one in particular. See Sevier v. Railroad Co., 61 Miss., 8, 48 Am. Rep., 74; Railroad Co. v. Kendrick (Tex. Civ. App.) 32 S. W., 42; Nunn v. Railroad, 71 Ga., 710, 51 Am. Rep., 284; Gage v. Railroad Co., (Miss.) 21 South. 657.

The original petition, relied for recovery solely upon the ground that the defendant had forcibly ejected herí from its train, and her testimony was to this effect; and it was error, after the evidence was all in, to permit an amendment alleging that the defendant had negligently permitted her to get off the train. There was no testimony on which to base such an amendment, and, if there had been, it would not have supported a claim for damages against the defendant. And the verdict for $250 was grossly excessive, in any aspect of the case. No harm came to the plaintiff. She was only detained on the journey for a few hours, and the mental distress incident thereto in a child of that age was not great, and was certainly much lessened by the fact that during her enforced stay in Hopkins-ville she enjoyed the society of children of her own age in the hospitable home of the station policeman.

We deem it unnecessary to decide the question of jurisdiction relied on, as, under former rulings of this court, there can be no doubt that, upon the return of the case to the lower court, it now has jurisdiction to determine the issues raised by the pleadings.

For the reasons indicated, the judgment is reversed, and the cause remanded for i>roceedings consistent with this opinion.  