171 Ky. 626 | Ky. Ct. App. | 1916
Opinion op the Court by
Affirming.
Appellee was an employe of the appellant in its coal mine in Pike County, Kentucky. A part of Ms duties was to assist the track-layer having charge of the temporary tracks in the mine, and if any obstruction should appear upon any of the tracks to assist in clearing it off, at any rate to help extricate the rMls of the track from beneath such obstruction. Upon the occasion of the accident to him, resulting in the injuries for which he sues, a considerable quantity of slate and rock had fallen upon a portion of one of the tracks and practically covered up four rails, leaving at one end of the rails something like four or five feet of them uncovered by the debris. It was a part of the duty of appellee to in some manner draw these rails from under tMs debris, and if it could not otherwise be done, to procure the
The answer is in three paragraphs, the first of which is a traverse of the petition; the second is a plea of contributory negligence, and the third relies upon the assumption of the risk by the plaintiff. A reply completed the issues, and upon trial there was a verdict in favor of the plaintiff in the sum of $7,000.00, upon which
Upon a second trial the plaintiff recovered judgment for $5,000.00, from which this appeal is prosecuted. The evidence heard upon the two trials is almost literally the same. By far the major portion of it was by depositions, which were read upon both trials, with the exception that in those taken for the plaintiff’ the objectionable testimony pointed out by the first opinion was not read to the jury on the second trial. What has been said with reference to the identity of the.testimony heard upon the two trials may, with equal correctness, be said with reference to the instructions given to the jury upon the two trials; while those given at the last trial may not be in the exact verbiage of those given upon the first trial so as to entitle the former to be called 'the verbatim of the latter, they are, to all intents and purposes, the same.
The grounds urged for a reversal are, first, that the evidence is insufficient to show that the motorman was incompetent, and therefore a peremptory instruction to find for the defendant should have been given. Second, that the same error was committed upon the last trial for which the first judgment was reversed. ,,Third, that the court erred in refusing to give to the jury instruction B offered by the defendant; and fourth, that the court' erred in refusing to grant it a new trial, because, it is insisted, that the jury, while considering its verdict
Considering- these objections in the order mentioned, it is sufficient to say that the evidence as to the incompetency of the motorman is the same as it was upon the former trial. A peremptory instruction was insisted upon at that trial, and the refusal to give it was assigned and argued as error upon the first appeal. The contention was denied, and, under repeated rulings of this court, it cannot be considered on this appeal. The question is now res adjudicata between the parties: Osborne v. Louisville Railway Co., 171 Ky. 348; Wheeler v. C., N. O. & T. P. R. Co., idem. 436, and authorities therein referred to.
As to the second point urged for a reversal, it is insisted that one witness, after testifying to having heard the mine foreman speak of the recklessness and carelessness of the motorman, stating- that it was before the accident, on cross-examination he was made to say that he was not positive as to whether it was before or after the accident. The tenor of this witness’ testimony is to the effect that the statements of the foreman, which he details, were made before the time of the accident, and it cannot be said that because he was not perfectly positive as to the precise time of it that it should be presumed that this testimony related to a time subsequent to the accident. An error relied on for the reversal of a judgment must -be clear and positive, and not exist in mere probabilities. In view of the fact that all of the testimony on this point, with the possible exception of the doubt of this witness expressed on cross-examination, after his previous positive statement made in his examination in chief is the same on both trials, we are not prepared to say that the admission of his testimony constitutes such an error as would justify a reversal, and. we, therefore, find no merit in this contention.
The third ground, that of failing- to give to the jury; instruction B offered by the defendant, is insisted on. because it is claimed that the testimony of the witnesses-introduced by the plaintiff that they had heard the su
“Upon the issues as to whether or not the appellant knew, or by the exercise of ordinary care could have known of the incompetency and unfitness of the motorman to operate and handle its motor in performing the duties incumbent upon the motorman, in the operation of its mines, and the negligence of the appellant in employing and retaining in its employ such an incompetent servant, the declarations of the- mine superintendent, who had the authority to employ and discharge the molorman, tending to show his incompetence and unfitness, <ind which were made before the time upon which appellant sustained his injuries, are competent evidence to prove the appellant’s knowledge of the incompetence and unfitness of the motorman.”
We do not so narrowly construe the language of this court as do attorneys for appellant. Immediately following the statement above, is this further one: “The reason why the declarations of the mine superintendent, regarding the incompetency of the motorman, made before the injuries were received, were competent as evidence against appellant, is that he was the agent of appellant. ’ ’
The court in making the first statement above was not endeavoring to confine the relevancy of the testimony now being considered to the issue of the knowledge of the incompetency on the part of the master, but further on, and in the statement last quoted, it is shown that the declarations of the superintendent may be admitted upon the issue as to the incompetency of the negligent servant, and they are not confined to a mere knowledge, on the part of the master, of such incompetency.
As to the fourth ground, it is shown by the affidavits of two jurors that one member of the jury, after the case had been submitted to it, and when the jury was in the room considering- the case, stated that on the former trial the plaintiff had been given a verdict fpr $7,000.00,. and' the argument is made that if it had been known at the time of the acceptance of the jury that any of them had this information such ones so informed would have been excused; that this would have furnished a challenge for cause, and that, inasmuch as the juror withheld such knowledge on his voir dire examination, he was incompetent to sit as a juror, and that the affidavit of a fellow juror is competent to show such disqualification. It is conceded, by an unbroken line of opinions from this court, that a verdict cannot be impeached through the testimony of jurors as to what occurred in the jury room, except to show that the verdict was made by lot; but it is insisted that the testimony of a juror might be received for the purpose of showing that a fellow juror was an incompetent one, and that such facts might be shown in this manner as would disclose that some of. the jury were biased toward one of the parties at the time they were accepted on the panel. A great many cases, including- many in Kentucky, hold that such information as the juror in the instant case disclosed, would have justified his being excused from a place on the jury, but this is not the question here. The rule not permitting verdicts to be impeached by the testimony of a member of the jury as to what occurred while the verdict was-being considered, with the exception stated, is one de-signed to protect the saeredness of the jury system, as
There is no contention as to the size of the verdict, as the plaintiff lost an eye, sustained a broken nose, a broken jaw, and was otherwise seriously and permanently injured.
Wherefore the judgment is affirmed.