104 S.W.2d 431 | Ky. Ct. App. | 1937
Affirming.
About 6 a. m., Saturday, October 13, 1934, the lifeless body of Mrs. Loretta Hommes was found between the east and westbound tracks of the C. O. Railway Company, and just at the north or northeastern entrance to an underpass which carried those tracks beneath Tenth Street of Newport, Ky. Mrs. Hommes had died intestate and on April 5, 1935, Mathew L. Hommes became and now is her administrator. On April 10, 1935, he began this action against the C. O. Railway Company, in which he sought to recover $30,000 for the alleged negligent killing of his intestate. On the 13th of April, 1935, the petition was amended, the city of Newport was made a party defendant, and a like recovery sought of it as a joint tortfeasor. The *204 cause came on for trial on December 3, 1935, and on the following day at the conclusion of the plaintiff's evidence and under the direction of the court the jury returned a verdict for the defendants. Original and amended grounds for new trial were overruled on January 6, 1936, and this appeal followed.
There are twelve photographs in this record and their usefulness would have been very much increased if an engineer had gone along with the photographer and had laid north and south upon the ground an arrow made of lineoleum or some other material that would show in the photograph, so that the first glance at the picture would enable any one to determine directions. Also, it would be so easy for the photographer taking the picture to note upon the negative the date it was taken.
Because the engineer who drew the map used in this case, drew it askew upon his drawing board, great difficulty has been presented, but the attorneys finally agreed to turn the whole face of the earth rather than to attempt to turn their map and accordingly they speak of Park avenue, Vine street, and the C. O. railway tracks as all being parallel and running north and south. Tenth Street and Center Street are treated as parallel and running east and west.
The Place and Alleged Cause of the Accident.
In the course of time, the wooden flooring of which this bridge viaduct or overpass was made became *206 worn, and it was necessary to refloor it, and in doing that the following strips of flooring had to be renewed: On the south side of this bridge a wooden walkway, 9 feet, 9 inches wide, had to be refloored, then north of that a driveway, 45 feet, 8 inches wide, had to be refloored, two wheel guards, one on either side of this driveway and each 8 inches square, had to be replaced to prevent vehicles from driving off this driveway onto the adjoining footways. The footway on the north side of this overpass was formerly 10 feet, 3 inches wide, but a 20-inch watermain of the city of Newport was installed on that side of the bridge and this watermain, with the space needed to enable workmen to get around and about it, occupied so much of this 10 feet, 3 inches, that there was left for footway only 6 feet and a fraction on that side. Three feet, 4 inches, south from this footway, or from the northern wheelguard, we find the north rail of the C. N. Co. Street Railway track. The gauge of this street railway is 5 feet, 2 inches, so that the south rail of the street railway will be found 8 feet, 6 inches, from the northern wheelguard, the northern boundary of the driveway proper. We cannot from this record say whether the work of reflooring this bridge was begun on the southern side of it, as the coroner testifies, or the northern side of it, as testified by others, and it makes no great difference which, for on October 12, 1934, the defendants had removed the flooring from the strip of footway 6 feet and a fraction in width between the northern side of the driveway and the watermain.
To succeed, the administrator must show the defendants owed to Mrs. Hommes some duty at this point, that they neglected that duty, and that Mrs. Hommes was by the negligence of the defendants caused to fall through one of these openings and to fracture her neck and skull and to sustain such other injuries thereby that she died as a direct result thereof.
What evidence there is shows Mrs. Hommes spent the evening of October 12th, with a friend, Mrs. Rose Stevens, who lived at 1116 Vine street in Newport, where she remained until about 10:45 or 11 o'clock, when she left and according to Mrs. Stevens walked north on Vine street to Center and crossed Center and turned west, and the last Mrs. Stevens saw of her, she was walking west on Center toward Park street. Without objection, Mrs. Stevens was allowed to state that Mrs. Hommes had told her she was going to the station on 10th street (which is just 44 feet west of this 10th street overpass), that there she would get a Fort Thomas car and transfer at 3d street to a Newport and Covington car, and in Covington she would change to a Main street car which would put her within one block of her home. There is no evidence any one saw Mrs. Hommes alive after she passed out of the sight of Mrs. Stevens as she was walking west along Center street.
"Yes — no — yes, they were over where the body laid because we were standing under them girders and drips of frost or rain would drip down like rain."
We will say more of this later. He did not go up on the overpass, and when asked to describe the condition of the body, said:
"Why, the body just laid there clothed and nothing was disturbed, they were all in place like the body was laying. The body was laying face down to the ground, cinders and little stones were all pressed in her flesh here."
It is the claim of her administrator that Mrs. Hommes, in order to reach the station or waiting room west of the overpass, had crossed Tenth street at the foot of Park avenue, had then entered the portion of the barricade left open for the passage of the street car, and that from there she had wandered onto and fallen through some portion of the footway north of the bridge that had been stripped of flooring, painted, and left open. If the administrator were able to prove all that, he would be in a very strong position, but about all the proof he has is that this woman was alive and well about 11 o'clock the night before and was dead near the end of this underpass about 6 o'clock the next morning.
There is considerable dispute in the briefs about the sufficiency of these barricades. The administrator stoutly relying upon the case of De Garmo v. Vogt et al.,
The bleeding within and at the base of Mrs. Hommes' skull, the bruise and bleeding on the left side of her scalp, the bruise on her leg, on her side, the bruise and tear on her right shoulder, all indicate she had *210 received considerable rough treatment before she died. Did she get this rough treatment before her body fell, was thrown, or placed where it was found? We think this record answers that question. Mr. Grogan, the witness who found her body, speaks of cinders and little stones being pressed into her flesh. Her body and clothing were in no disorder. If she were alive when her body fell, was thrown, or was placed where it was found, it was entirely natural that she should bleed at each place where a little stone or cinder was pressed into her flesh, yet no one makes mention any where of any bleeding from the wounds produced by these cinders, stones, and pebbles. It is no answer to say the record is silent on this subject. The plaintiff made this record. The presumption is that the action of the trial court is correct. If the plaintiff hopes for reversal, he should have in this record something to which he can point and say, "The court in giving a peremptory instruction erred here." We have not yet found such.
What the coroner meant by the expression, "15 feet from the east end of the bridge," is not clear. Plaintiff's counsel saw that and picking up a photograph asked: "15 feet in that way?" and the coroner said, "Yes." Then followed considerable interrogation about the wheel guard. *211
If the coroner was referring to a point 15 feet from the east end of the wheel guard as the location of the hole through which he thought Mrs. Hommes fell, then she would have fallen at a point 16 feet east of where her body was found. If he means 15 feet from the north side of the overpass, then he located this hole between the two rails of the street car line which no witness claims was then torn up.
If this case had been submitted to the jury, all it could have done in determining the cause of Mrs. Hommes' death would be to guess. Therefore it was not error to direct a verdict for defendants. See discussion of this question of conjecture in Kidd v. Modern Amusement Co.,
The administrator knew what he would have to prove, for he had alleged in this petition:
"That on or about 10:45 P. M. of said October 12th, 1934, said decedent, May Loretta Hommes, while walking in a westerly direction over and upon said overpass, so a part of said Tenth Street, by reason of the said negligence and carelessness of said defendant company, was caused to step into and fall through said uncovered and unguarded opening or space in said sidewalk precipitating her to the said railroad tracks of defendant company, so lying about 30 feet immediately below said uncovered opening or space in said sidewalk, thereby fracturing her neck and skull and otherwise so seriously injuring her that she died therefrom."
The administrator has introduced no witness who testifies he saw anything of that kind occur, in fact, the administrator utterly failed by direct evidence to establish his case. Indeed, there is no witness who testifies he had seen the deceased on this viaduct at any time, October 12, 1934, or any other time, but the administrator has attempted to make out his case by proof of facts and circumstances from which he would have the jury infer his intestate came to her death in the manner he had alleged, but the facts he does so establish lead more logically to a conclusion the happenings on this viaduct that night were quite other than as alleged in the petition. We have neither the time or the ability to discuss circumstantial evidence extensively. We are fully aware that Paley said, "Facts cannot lie, while witnesses can and often do," but facts often deceive, and inferences drawn from them are often erroneous. We said in the Kidd Case, supra:
"It is difficult to point out with exactness just when a case should be submitted to the jury, but Mrs. Kidd has not made out such a case when the only reasoning by which a juror could find for her is: 'The plaintiff has some evidence to show this accident could have occurred as she contends, therefore I guess it did.' Such a verdict would *213 be rested only on a supposition. On the other hand, she would have a case to be submitted if she had enough that a juror could say: 'The plaintiff has such evidence concerning the occurrence of this accident, that its happening cannot reasonably be accounted for otherwise than that it occurred as she contends, therefore I conclude it did happen as she contends.' Such a verdict would be rested on an inference."
See. 45 C. J. p. 1267, sec. 835, N. 41.
From the proof the plaintiff had, the jury might suppose Mrs. Hommes came to her death as alleged, but it could just as logically conclude she came to her death in some other manner, therefore there was not sufficient evidence to warrant the submission of the case to the jury. A litigant's rights are not to be guessed away.
Judgment affirmed.