162 S.W.2d 785 | Ky. Ct. App. | 1942
Reversing.
This is a novel case. The appellee, Mrs. Frances Brown, recovered a judgment for $1,000 for personal injuries sustained by the alleged sudden, unusual and violent jerk or lurch of a river steamboat as it pulled out from the wharf.
On a clear, calm afternoon of September 3, 1938, Mrs. Brown, who was about 70 years of age, accompanied by several members of her family, boarded the "Island Queen" at Cincinnati for an excursion trip up the Ohio River. According to the evidence introduced by the plaintiff, the boat started when the party had gone up the stairs to the second deck and when she was out about 15 feet on the dancing floor. Mrs. Brown testified:
"We were standing still to see where to go for a seat. I started over to sit down and just as I moved my right foot to take a step the boat gave a violent jerk and threw me with my limb back under me. My limb was broken at the hip on the inside."
The plaintiff's son and daughter testified that the boat started moving out sideways into the river with a *752 sudden, violent jerk or lurch, the son saying that he had to put out a foot to keep from falling. It does not appear that there was at the time any assertion that the fall was thus caused, and the suit was not filed until one year, less two days, afterward.
the evidence of the defendant is that when Mrs. Brown fell the boat was still tied up and other passengers were being taken on. Two men who operated cigar and refreshment stands nearby saw Mrs. Brown fall, but did not notice any sudden movement of the boat. They say it had not pulled away from the shore. The purser who had a key to the first-aid room was sent for. He was still checking in passengers and had someone to take his place while he came to Mrs. Brown's assistance. The Captain's and other officers' testimony is the same. They and several other men of long experience in operating river boats, and particularly the "Island Queen," were most emphatic that it is impossible for such or any boat to start with a jerk or lurch. This is the largest boat on the Ohio River. It is constructed entirely of steel, is 286 feet long and 85 1/2 feet wide, and has a 5 1/2 foot draft. The boat is propelled by side wheels 30 feet in diameter, powered by two oil burning steam engines of 750 horse power each, operating independently. The engines, the Captain testified, are too tight for the size and weight of the boat and it is impossible for them to exert enough power to make her jerk or lurch. When a boat pulls out the inside wheel goes forward and the outside backward, thus pulling her head away from the wharf boat, and when she gets out far enough to clear everything she goes ahead on both wheels. This boat moves something like 100 yards before gathering full speed. The Captain testified:
"The paddle wheels in the start slip. They are not like automobile wheels on the ground. They slip. There is a slippage of 65% in the start. They slip ahead until the speed is picked up."
An exploration was made of the defendant's witnesses to ascertain if it was possible for the rear end of the boat to have been knocked against the wharf so as to have caused the sudden jerk as described. But the witnesses clearly described the situation to be that the rear end at all times rests against the wharf boat, and while they had never known of the ropes tying up the boat not to have been released in such a case, yet if they were not *753 untied they would break or the wharf boat itself would move at the same time, since it rests in the water and is tied to the shore by loose chains.
In short, the defendant's testimony was that no matter how much power is exerted, any boat of this character necessarily starts and moves slowly; that it is impossible to cause it to jerk or lurch. Clear reasons were given for this opinion. The plaintiff did not undertake to refute this evidence of impossibility, merely relying upon the testimony of herself, son and daughter that the boat did start with a jerk which caused her to fall.
On the law, the appellee rests her case upon the decisions that a common carrier is liable for injuries to a passenger resulting front an unnecessary, unusual and sudden jerking or stopping of a vehicle so violent as to indicate negligence. Louisville Railway Company v. Osborne,
It is, to be sure, ordinarily the function of a jury to determine the weight and effectiveness of the evidence. But this acceptation of the power or prerogative of the jury is subject to the quite universal qualification that the jury may not, through sympathy or other reason, arbitrarily or capriciously base its verdict upon a statement as to what occurred or how something happened when it is opposed to the laws of nature or is clearly in conflict with the scientific principles, or base its verdict upon testimony that is so incredible and improbable and contrary to common observation and experience as to be manifestly without probative value. 20 Am. Jur., Evidence, Sections 1183; 1184; Jones, Commentaries on Evidence, Section 461; Moore on Facts, Section 149 et seq.; Annotations, 8 A.L.R. 796; 21 A.L.R. 141. We have recognized the rule in many cases and applied it in a number involving various kinds of incredible stories. See Louisville and Nashville Railroad Company v. Chambers,
Quite close to the foregoing rule as to contradiction of the physical laws is another which may well be applied here. It is that if the admitted physical facts, whether corroborated by testimony of those who saw the accident or not, are so contradictory of the testimony of other witnesses as to how or where an accident occurred, a verdict based upon that testimony will be deemed by this court to be flagrantly against the evidence. Cumberland Railroad Company v. Girdner,
We would not be understood as imputing perjury to the plaintiff and her witnesses. We think their testimony is based upon a theory, and that the theory is destroyed *756
by the physical facts and the unchangeable law of nature. We may close the opinion with the following extract from Spiro v. St. Louis Transit Company,
"Verdicts resting on evidence which looks contrary to the ordinary course of nature are not infrequently set aside, and retrials directed by appellate courts, as a proper precaution against an unjust outcome of litigation. * * * This prerogative of courts of error is sparingly employed, but that it exists, as an emergency expedient, for the correction of verdicts palpably wrong, is certain. The appropriate use of it does not require a court to be convinced that the jury found an event to have occurred that was physically impossible or miraculous. It is enough if the event found was so improbable, according to the ordinary operation of physical forces, or was so overwhelmingly disproved by credit witnesses, as to compel the conviction that the jury either failed to weigh the evidence carefully, or drew unwarranted inferences, or yielded to a partisan bias."
The judgment is reversed.