178 Ky. 229 | Ky. Ct. App. | 1917
Opinion.of the Court by
Reversing.
.,. "W. R. Fincli, twenty-one years of age and unmarried-, was killed at .Covington, Tennessee, early in. tie . after:
After the rendition of' this judgment, the railroad company filed an action against the administrator seeking a new trial, upon the ground of newly discovered evidence, in which the new trail was refused and the petition dismissed; and, from that judgment, the company has also appealed ; and the two cases are, by order of this court upon motion of appellant, heard together. Although heard together, the ouestions involved are not the same, and a separate consideration will be necessary.
In the original suit, the plaintiff introduced but four witnesses upon the question of how the accident occurred. ' Mr. J. D. Clark, the fireman on the train, testified that the train was stopped some distance north of the switch leading from the main track to the side track; that the engine, with five empty freight cars that were to be left on the side track, was uncoupled from the main train and proceeded to the water tank south of the switch; that, after taking water, the engine and five cars were backed on to the side track and coupled to seven cars that were to be placed in the train; that, with the twelve cars attached, the engine pulled out on to the main track, so that all of the cars cleared the switch, when the seven cars were again uncoupled and the train backed up north on the main track, until near the switch, when a speed of from three to six miles an hour had been attained, the engine, with the five cars still attached to it, was stopped for the purpose of letting the detached seven cars proceed north on the main track past the switch, and intending to then put the five cars in on the-side track to be left there, but that just after the engine was stopped, the engineer said: “Lord have mercy, we have killed the flagman;” that they left the engine and five cars standing on the main track just south of the switch and went to the flagman, whom they found uncon
This version of the movement of the cars, at the time of and just previous to the accident, is corroborated by every witness who testified for either side, except that some of the witnesses placed the speed of the train, at the time of the accident, as high as ten miles an hour; and every witness, who professed to know, stated that the seven cars did not go back north on the main track to, or any ways near, the main train, stationed some twenty-five to forty car lengths north of the switch; and that the decedent fell from the seven cars some four or five car lengths north of the switch and near a cotton compress shed just west of the tracks.
The only testimony of negligence in this operation is furnished by Lee Kent and Stacker Hall, two negroes, introduced by plaintiff; and, although both of these witnesses testified that the seven cars did not strike the main train, which, they said, was some distance north on the main track, they do say that this cut of cars, while rolling north on the main track, hit some “other car or cars” with such force as to move these “other cars” about the length of a rail, as stated by Kent, and some four or five feet, as stated by Hall. Both Kent and Hall testified that they were standing near the cotton compress shed west of the track and heard a loud noise about the time the cars came together. Unless this evidence “be something of relevant consequence, possessed of the quality of proof and having fitness to induce conviction,” plaintiff did not make out his case, and the peremptory instruction asked for by defendant should have been given.
It is thoroughly established by the evidence of plaintiff’s witnesses, including Kent and Hall, as well as that of defendant’s witnesses, and not contradicted by’ any one, that the seven cars, from one of which decedent fell, were the only cars on the main track between the main train, left standing some distance north, and the five cars attached to the engine, which, at the time of
As this was the only evidence of negligence, or from which it could be inferred, the court erred in refusing to direct the verdict for defendant. L. & N. R. Co. v. Chambers, 165 Ky. 703; Wasioto & B. M. R. Co. v. Hall, 167 Ky. 819; Louisville Water Co. v. Lally, 168 Ky. 348.
2. The action for a new trial was tried upon the-affidavits of Lee Kent, James Graynes, Limas Peete, Louis Yarbro, and Billie Wynn, filed with the-petition, and the affidavit of Frank Moore, filed with the defendant’s answer, which were, by agreement, réad as the depositions of the affiants. As we have above set out, thé original suit for damages went to the jury on the question of negligence upon the evidence of Lee Kent and Stacker Hall. In his affidavit,- filed with the petition for a new trial, Lee Kent stated that-his evidence upon'the trial of the damáge suit'was untrue; that he did not hear'any loud noise, or see,'-or know, anything about the accident, except what he was told shortly after it occurred. , ■ - ■ ■
The affiants, G-aynes, Peete, and Yarbro, state in their affidavits that they were standing on the' platform north of the compress shed, at the time of the accident; and that Stacker Hall' was not there, as he had testified he was when he claimed to have witnessed the accident: Billie Wynn, in his affidavit, stated that he witnessed the accident; that decedent, in attempting to jump off the moving car, slipped and fell under the train; that there was no collision or loud noise; and that Stacker Hall was not where he testified he witnessed the accident. The retraction of Lee Kent was not sufficient to warrant a new trial. Wallace v. Commonwealth, 167 Ky. 277. The evidence of the other affiants was merely cumulative,' insofar as it contradicted the' testimony of Kent .and Hall of. a collision and loud noise; since defendant’s witnesses testified that neither occurred; and their evidence, tending to impeach the witness, Stacker Hall, in addition to being cumulative, is not such newly discovered evidence as-will authorize a-new trial.’ So,-'the only
Wherefore, the judgment in the first case is reversed and the original cause is remanded for a new trial consistent herewith; and the judgment in the action for á new trial is affirmed. .