Louisville & Nashville Railroad v. Thomas

Truly, J.,

delivered the opinion of the court.

The contention of the appellant that it was incumbent' upon the appellee to aver, in her declaration, that the son for whose death she sued was the offspring of legitimate wedlock, is untenable. Legitimacy is presumed by the law, and one who seeks, in a case where such defense is available, to prevent a recovery on the ground that the plaintiff is not entitled to damages for the death of an illegitimate child, must interpose such defense and prove the same affirmatively by a preponderance of evidence. The instructions properly presented this question to the jury, and in the light of the facts developed by the record, we think their finding of legitimacy sustained by the weight of the testimony. We find no error in the instructions granted the apqiellee.

The question of whether appellee’s intestate was guilty of contributory negligence under the facts of the case and the circumstances attendant upon the accident was properly submitted to the decision of the jury; so, also, was the question of whether the discharge of his duty called him to the place on the top of the car from which he was knocked, causing his death. It plainly appears that he took this place in obedience to a call for brakes sounded by the engineer, and that he was at the time at his place of duty, attempting to apply the hand brakes. It was for the jury to say, under the facts of the case, whether he was guilty of negligence- in so stationing himself. It was incumbent upon appellee to prove that the death was caused by decedent’s being struck by the overhead beam of an improperly-constructed bridge. This burden is met to the satisfaction of the jury, not only by the testimony of one eyewitness, but, even beyond that, by the attendant .circumstances of the accident, and the description, character, and location of the injuries causing the death.

Nor do we see that the appellant has just cause of complaint at any of the instructions denied it. As to three counts of the declaration it was granted peremptory instructions, and the other grounds of its defense were submitted in as favorable a light as the law warranted. The jury were told that if the injury was caused by the contributory negligence of the decedent, or if his duties did not require him, to stand upon the top of the train, or even if the bridge was improperly constructed and too low for one to safely stand on the top of a train, if decedent was advised of this matter and negligently exposed himself, or if the jury were in a state of uncertainty, confusion, or doubt as to whether the decedent fell or was knocked off, they ought, in each stated instance, to find for the defendant, and that they had no right to surmise as to how the injury occurred independent of what the evidence showed. The appellant also received a misleading and questionable instruction — that it was not negligence for a railroad company to maintain a bridge having overhead beams too low for one to safely stand upon the top of a car when passing under them unless the duties of its employes called them to that place of danger. In our opinion, these instructions presented with the utmost liberality every possible defense arising out of the question of negligence and contributory negligence which the appellant was entitled to interpose.

There could not possibly be any ground of objection by appellant to the extremely small and inadequate amount awarded as damages by the jury.

Affirmed.