281 S.W. 1036 | Ky. Ct. App. | 1926
Affirming.
These four cases are companion cases to that of Price v. Kentucky Traction Terminal Company,
It is first insisted as grounds for reversal that the lower court erred in trying these four cases together over the objection of the appellants. The rule as to this proposition *38
is well settled and is thus stated in Benge's Admr. v. Fouts,
"Ordinarily, where there are several actions brought by different plaintiffs against one defendant and the issues are the same in each action, the court may try them together, but where the issues in the several cases are such as must be tried by a jury, and there is objection from one of the parties and the circumstances are such that the trial of the cases together would tend to place the objecting party in a position not occupied by his adversaries, and that would probably give the latter an undue advantage in the trial, the court should not permit them to be tried together. Whether the cases should have been tried together was a matter in the discretion of the trial court, and such discretion should not be interfered with on appeal, unless it is clearly made to appear that the discretion was abused."
This rule was approved and followed in the case of Farrar v. Hank,
"The main issues as to whether defendant was negligent and caused the accident were precisely the same in each case, but the issues as to contributory negligence were different, since any such negligence by one of the plaintiffs was chargeable to her alone, and not to either of the other plaintiffs. This same difference, however, existed in several of the cases supra, and is such that it may easily be taken care of in the instructions, so as to prevent the possibility of any undue advantage to any party upon the trial. Hence such difference does not necessarily require separate trials, and, no other reason appearing therefor, we cannot say that the court abused a sound discretion in ordering these cases to be tried together."
The only difference between the Farrar case and the ones before us is that we have here three guests instead *39 of two as in the Farrar case. But the main issue, as to whether or not, the appellee was negligent and caused the accident, was precisely the same in each of the four cases, and although the issues as to contributory negligence were different, this difference could be and was easily taken care of in the instructions so as to prevent a possibility of any undue advantage to any party upon the trial. There is no merit in the first ground for reversal.
It is next urged that the lower court erred as to the Misses Clarke and Miss Everlee Herndon in giving an instruction bearing on contributor negligence. In the case of Barksdale's Admr. v. Southern Ry. Co.,
Finally it is urged as to Miss Carlotta Herndon that because the court inserted an instruction in her case telling the jury that her negligence, if any, was not to be imputed to her guests and gave two instructions on contributory negligence, this phase of her case was unduly emphasized. But we do not regard this contention as meritorious. The telling the jury that her negligence, if any, could not be imputed to her guests could not affect her case, and although it might have been better for the court to have given but one instruction on contributory negligence, yet the giving of the two was not under the circumstances of her case prejudicial.
No errors appearing prejudicial to the substantial rights of any of the appellants, the judgments are affirmed.