182 Ky. 409 | Ky. Ct. App. | 1918
Opinion op the Court by
Affirming.
On July 12,1916, near the noon hour, Wesley Guilett, a man 51 years of age, was killed at the western edge of Carmel street, in the eastern part of the city of Mays-ville, Kentucky, by a freight train colliding with him, which train was going west and was being, operated oyer the tracks of the appellee and. defendant below, the Chesapeake & Ohio Railway Company, which crossed Carmel street at that point.
The appellant and plaintiff below, the Equitable Trust .Company, qualified as administrator of the deceased and brought this suit in the Mason circuit court against the Chesapeake & Ohio Railway Company and the engineer and conductor of the train, seeking to recover $50,000.00 for alleged damages to the estate of the deceased, upon the ground, as alleged, that “plaintiff’s intestate, Wesley Gullett, was by the carelessness and negigence of the defendant, Chesapeake & Ohio Railway Company, and of its agents and servants, -- Vernard and-Belew, who were in charge thereof, run over and instantly killed by one of defendant’s freight trains going west, whereby the estate of said intestate has been damaged in the sum of $50,000.00.” The petition then proceeds to allege that the individual defendants were respectively conductor and engineer of the train which collided with deceased, and then says “that said carelessness and negligence of the corporate defendant was done by and through its said servants and other of its servants then and there in its employ; and that said carelessness and negligence was the joint and concurrent carelessness and negligence of all of the defendants.”
Both parties filed motions and grounds for a new trial, but upon hearing the court overruled plaintiff’s motion for a new trial, but sustained defendant’s motion and set aside the verdict. Upon the second trial, at which practically, the same testimony was introduced by both sides to the controversy, the jury, under the same instructions given upon the first one, returned a verdict in favor of defendants, and plaintiff’s motion for a new trial having been overruled, it prosecutes this appeal. •
The motions for a new trial filed by plaintiff after the first and second trials are practically the same, and it is therein complained that the court erred in the admission and rejection of evidence, to which plaintiff objected and excepted; that it erred in the giving and refusing instructions to the jury, and that the verdict was flagrantly against the evidence. Plaintiff took the proper steps to bring before us for consideration the transcript of the first trial, and we are asked not only to review and reverse the last judgment, but to direct the court to reenter the first one.
There are two reasons why we should not interfere with the action of the court in granting the new trial. They are (a) that trial courts have a broad discretion in the matter of granting new trials, and such discretion will not be interfered with unless plainly abused. Smith’s Admr. v. Louisvillle Railway Co., 174 Ky. 784; Cherry Bros. v. Christian County, 146 Ky. 330, and Brown v. Louisville & Nashville Railroad Co., 144 Ky. 546. But if the grounds upon which a new trial was granted are insufficient, and there exist in the record no other sufficient grounds to authorize it, then this court is authorized and it would be -its duty to set aside the order granting the new trial and direct a reentry of the judgment. Ross v. Kohler, 163 Ky. 583, and Perkins v. Ogilvie, 148 Ky., 309.
The grounds upon which the court' granted the new trial do not appear in either of the transcripts, but we think that at least one legal ground existed, i. e., that the verdict upon that trial was flagrantly against the
Again, because (b) plaintiff insisted that the first verdict and the judgment pronounced thereon be set aside by filing its motion for that purpose, and it is clearly in no position to complain of that which it insisted upon being done.
Turning noW to the merits of the case as presented upon the last trial, it is shown that Carmel street is a public thoroughfare in the eastern part of the .city of Maysville, running north and south, and crossed by a double track of the Chesapeake & Ohio Railway Company running east and west. The south track is used by east bound trains, while the north track is used by west bound trains. The deceased lived on the west side of Carmel street, in the third house south from the railroad track. There were Houses on the east side of Carmel street opposite to wheré deceased lived, and extending north up to the railroad track. The deceased worked in the western part of the city of Maysville, and traveled to and from his work on the street car, which he boarded on the north side of the railroad track, where the street railway turned west from Carmel street. It thus became necessary for him to cross the double track of the defendant in order to reach the place where he had to board the street car to go to his work. Upon the occasion in question he had just finished his dinner, had gone out of his house and crossed Carmel street diagonally in a northeasterly direction to a point in front of a store where some apples were being unloaded from a wagon at the edge of the sidewalk running on the east side of the street;. According to a witness,he spoke a fewwords to someone present and then started north toward the place where he would have to board the street ear. All the eyewitnesses, being about five in number, who saw his movements and the way he was traveling after he left the apple wagon, say that he was in a run or a fast trot; that as he approached the track he was compelled to and plid ‘‘duck his head” in order to pass under the gate on the south side of the railroad track, which was then either down or measurably so; that he then discovered the approach of the train which collided with him, and which at that time was near the eastern edge of the street, and that in
The testimony of another witness upon this point is thus shown in the record: <£Q. Did you see him when he started running down the middle of Carmel street? A. Yes, sir. Q. What did he do, and what did you say to him? A. He came down the middle of Carmel street, and I said he could not make it and the gate came down and he dodged under the gate and started down the east bound railway and .turned over toward the switch box. As he stepped across the last rail of the west bound-track and the train hit him and knocked him in the middle of the track with his head toward the north and his feet toward the south. Q. What did you holler to Mr. Gullett when he went by you ? A. I told him he could not make it. Q. Did he hear you? A. Yes, sir. Q. Do you know whether Mr. Gullett looked at the engine or not? A. Yes, sir, he looked at it. Q? What do you say he did when he got to the gate? A. He dodged under it. Q. Was that gate down so that he had to duck under it in order to get under? A. Yes, sir. Q. And after that you say he went on the track and then turned over toward the shanty? A. Yes, sir. Q. What was he trying to do? A. He was trying to beat the train. Q. Did he ever stop running? A. No, sir, he never stopped runmng until the train hit him. ’ ’
This witness was at the southeast corner of the crossing and was close by where he dould both see and hear what occurred.
Another witness, who was on the porch of the store located just off the street at that corner, testified: ££Q.
Still another witness was asked and answered: “Q. What, if anything, did you see Mr. Gullett do ? A. When I saw Mr. Gullett he came running down. Q. Prom where? A. His home; when I saw him he was right on the crossing. He was talking to his wife as I went up and the train came and he came running and ducked his head down and went, across. He didn’t make it straight across, but went quartering across this way. ’ ’
The fireman who was on the side of the engine from which deceased approached said that he saw him coming toward the front of the engine after it had gotten upon the street or near thereto, and that he thought the danger so apparent that no effort would be made by-deceased to cross in front of the train, but that after passing the crossing and observing some dust which was produced by the collision he inquired of the engineer if any one had passed over on that side, and being informed that they had not, the train was then stopped and it was discovered that the deceased was killed. Just before the west bound train approached the crossing an east bound freight train had gone up on the south track. Just how far the caboose of that train had passed east beyond the crossing is in considerable doubt from the testimony, al
We do not find in the record any testimony offered by the defendants wrongfully admitted, nor do we find any wrongfully rejected which was offered by the plaintiff. In fact, very few objections to the admission or rejection of evidence by either side appear in the record, and no error arising under this head is discussed in brief of appellant’s counsel.
This leaves for consideration only the instructions of the court complained of. It would render this opinion too long to copy the offered and given instructions, since they are numerous. But we have examined them and have found that those given correctly submitted all phases of the case presented by both the pleadings and
The testimohy of eyewitnesses, to some of which we have just referred, brings this case, as we conclude, directly within the rule recognized in the cases of C. & O. Ry. Co. v. Warnock’s Admr., 150 Ky. 74; L. & N. R. R. Co. v. Taylor’s Admr., 69 Ky. 435; Same v. Fentress’s Admr., 166 Ky. 477; Same v. Trower’s Admr., 131 Ky. 589, and Stull’s Admr. v. Kentucky T. & T. Co. 172 Ky. 650, in which it is in substance held that one attempting, to cross a railroad track in front of an approaching train — which he knew to be approaching — is guilty of
Another criticism is one directed to the instruction concerning the maintenance and operation of the gates across Carmel street. It is doubtful if this instruction should have been given at all, since in an early part of this opinion it will appear that the negligence relied upon consisted of the wrongful operation of the train, and no rule is more firmly fixed in this jurisdiction than the one that only specified negligence may be .relied up oh in the absence of a general charge of negligence. But, giving the allegation charging negligence the most favorable construction for plaintiff by conceding it to be broad enough .to include negligence with reference to the gate, we then find that the court told the jury “that it was the duty of the defendant company to exercise ordinary care to maintain and operate the safety gates at the said Carmel street crossing so as to give reasonable warning to travelers of the approach of trains to said crossing,’’’and that if the jury believed that defendant failed to-perform any of the enumerated duties with reference to the gates, and deceased wa's killed as a result thereof, that the verdict should be for the plaintiff. It is our opinion that the court properly submitted that question, and the instruction under which it was done is not subject to the criticism which counsel make of it.
Upon the whole case we find no error prejudicial to the substantial rights of the plaintiff, and the judgment is therefore affirmed.