Court of Appeals of Kentucky.
June 18, 1909.
ACTION: Reversed and remanded.

Appeal from Circuit Court, Knox County
"Not to be officially reported."
Action by Mat Anderson against the Louisville & Nashville Railroad Company.
Judgment for defendant, and plaintiff appeals.

Plaintiff with his father boarded one of defendant's trains. The father has given plaintiff money to purchase the tickets, which he did. Plaintiff had mislaid the tickets, and was unable to find them at once, and, to avoid immediate ejection by the conductor, plaintiff's father handed the conductor a $10 bill and requested him to go on taking up tickets. The conductor asked them where they were going, to which the father replied: "The tickets will show. I don't want you to take our fare out of that ten dollars." The conductor continued to take up tickets, then returned, and on being informed that they had not found the tickets, ejected them and finally surrendered the $10 to plaintiff's sister. Held, that the handing of the $10 to the conductor did not constitute a payment of the fare, and should be considered only on the question of plaintiff's good faith in attempting to gain time to find his tickets.

The facts of this case, in so far as presented by appellant, are exactly the same as those presented by appellant in the case of John Anderson v. L. & N. R. R. Co. (the opinion in which is this day delivered) 120 S. W. 298. Upon the conclusion of appellant's testimony in the case at bar, the court, upon motion of appellee, gave to the jury a peremptory instruction to find in behalf of appellee. The court erred in giving this instruction, for the reasons stated in the opinion referred to.

Therefore, the judgment of the lower court is reversed, and remanded for further proceedings consistent with that opinion.

Ky.App. 1909.
120 S.W. 301


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