Louisville & Nashville Railroad v. Bruce's Administratrix , 201 Ky. 560 ( 1923 )

Opinion of the Court by

Chief Justice Sampson

Affirming.

This is a companion case to that of the Louisville & Nashville Railroad Company v. Harris Howser’s Admr., in which an opinion was delivered on October 30, 1923, and reported in 201 Ky., page 548. As Howser and intestate Bruce were riding in the same automobile at the time tlie engine of appellant company struck it and killed them both, the facts are identical. The recovery by the administrator in this case, $10,000.00, is the same as in the Howser case, the only difference between the cases, as stated in brief for appellant in. the Howser case, there was no averment that the crossing at which the accident happened was much used, whereas, in this case, while the original petition did not so allege, appellee was permitted, over appellant’s objection and exceptions, to file an amended petition making that allegation. In the Howser case the court excluded evidence as to his intoxication, whereas in this case the court admitted evidence of decedent’s habits as to drinking and as to what he and Howser did in that respect on the day of the accident. Inasmuch as the law and facts are exactly the same except in the respects just suggested, it will be unnecessary to do more in this case than to refer to the opinion in the case of Louisville & Nashville Railroad Company v. Howser’s Admr., supra, in affirming this judgment.

Judgment affirmed.