204 Ky. 62 | Ky. Ct. App. | 1924
Opinion op the Court by
Reversing.
The appellee recovered of appellant judgment for $500.00 On the 5th of March, 1921, about 9:30 a. m., appellee and his brother-in-law were riding west on Broadway in Louisville, Kentucky, on their bicycles, and about ten feet from the northwest corner of Thirty-fourth and Broadway, he was run into from the rear by an automobile belonging to appellant. His bicycle was knocked from under him and appellee fell to the street immediately in front of the automobile, which, strange to say, passed over him without any of the wheels striking him. He sustained a few slight bruises, one over his left eye, one on the back of his head and one on his right leg on the outside, just about on the level with his knee.. His skin was not broken in any place and there was no bleeding. His clothing was torn more or less, and his bicycle was damaged.
The evidence was very conflicting and some witnesses testified to injuries received by appellee much in excess of what we have stated here. The appellant has assignd many reasons for the reversal of this case, but we deem it unnecessary to consider any of them except
When this case' was called for trial the appellant moved the court for a continuance on account of the absence of Charles Tompert, and with his motion the appellant filed his affidavit setting forth what would be the testimony of Tompert if present, and the efforts he had made to have him present. Appellee resisted appellant’s motion for a continuance and the court required the appellant to submit to trial. During the introduction of the evidence for the appellant, he offered to read this affidavit as the deposition of Tompert. The appellee objected and the court overruled his objection, and permitted the affidavit to be read. In his concluding argument, counsel for appellee stated and argued to the
Counsel, in argument, should be confined to the facts shown by the evidence and to reasonable deductions therefrom, and should not be allowed to depart from 1jb.is rule. Section 315 of the Code deals with the subject of
Judgment is reversed, and this case is remanded for new trial consistent with this opinion.