137 Ky. 528 | Ky. Ct. App. | 1910
Opinion op the Court by
— Affirming.
■ The evidence upon which the case was submitted to the jury is as follows: Toms creek in Johnson county, Ely., is a navigable stream. Appellant’s pipe line crossed that stream in three places. The appellees were proceeding down the creek with some 2,500 cross-ties which they proposed to float to the mouth of the creek, and then raft down the Big Sandy river to market. When the ties reached appellant’s pipe line, they lodged against it. Appellees were compelled to employ several men to assist in getting the ties over the obstruction. They succeeded in getting only about 1,800 ties over the same. In doing this they were delayed on their journey iy2 days. As soon as they got their ties over the pipe line and to the mouth of the creek, which was only about a half mile below the pipe line, they distributed their ties in two rafts and started down the Big Sandy river to market. When they got to a point about eight miles this side of the market to which they were bound, there came a sudden tide in the Big Sandy river, and, in spite of all their efforts to save same, one of said rafts, containing 910 cross-ties, was
Some point is made of the fact that appellees testified that they had to expend $120 for the purpose of getting hands to assist them in moving the ties over the obstruction, and that their own statements tended to refute this evidence. That may be true, but the jury did not allow them the full amount sued for, and the difference between the sum prayed for and that awarded them will account for this item. If appellees were entitled to recover at all, they were entitled to the market value of the ties at the time they were destroyed. Upon this point we cannot say that the verdict is flagrantly against the evidence.
In the case of Cassilay, etc., v. Young, etc., 4 B. Mon. 265, 39 Am. Dec. 505 Cassilay and others agreed to deliver a cargo of goods in Vicksburg without delay. Por some reason, satisfactory to themselves, they stopped the cargo, and tied it up to the bank of the river at Vicksburg. A storm arose which caused the cargo to sink, and an action was brought for the .recovery of the value of it. Judgment was given against them. The court said: “By reason of the disregard of their duty and of their conduct, we are of the opinion that they are liable for the loss.” In the case of Louisville & Nashville R. R. Co. v. Brownlee, 14 Bush, 590, appellee delivered several hogsheads of tobacco at appellant’s depot in Rowlett’s station, to be carried by it to market. The tobacco was destroyed by fire. The proof showed that, if appellant’s agent had exercised ordinary care, he could have shipped several of the hogsheads before the fire. This court said: “If the appellant could, by the exercise of ordinary diligence, and in the regular course of its freight business, have
The case under consideration does not differ in principle from those above referred to. The delay
No complaint is made of the instructions. Indeed, none could be made, for they aptly presented to the jury all the issues involved.
The court did not err in refusing to give the following instruction to the jury: “The court instructs the jury that, unless they believe from the evidence that it was the duty of the defendant to keep its pipe line in such a condition that it was not an obstruction to the navigation of Toms creek to float railroad cross-ties out of it, they will find for the defendant.” This instruction presents simply a question of law. Questions of law are for the court, and not for the jury. It was the duty of appellant not to obstruct the navigation of Toms creek, and the court necessarily determined this point in favor of appellees when it submitted the case to the jury.
Perceiving no error in the record prejudicial to the substantial rights of appellant, the judgment is affirmed.