196 Ky. 303 | Ky. Ct. App. | 1922
Opinion op the Court by
Affirming.
Appellee Holmes, on December 12, 1913, while on a grade .crossing in the city of Mayfield, Kentucky, was struck by a passing train and injured in many parts of his body and especially in his left foot and leg, so that said foot was necessarily amputated, and he brought this action in the Graves circuit court against the Illinois Central Railroad Company to recover damages for his injuries, and was awarded $500.00 on a jury trial. The railroad company appeals from the judgment entered upon that verdict.
It is the insistence of the railroad company that while the scintilla rule requires the submission of a case like this to the jury, yet if the verdict is flagrantly and palpably against the evidence the court should set aside the verdict and grant a new trial. C. & O. Railway Co. v. Johnson, 151 Ky. 809; Dailey v. Lexington and Eastren R. R. Co., 180 Ky. 668. There are a great number of cases in Kentucky to the same effect. That this is the correct rule cannot be gainsaid. Appellee Holmes insists that there is abundant evidence 'to support the verdict.
Appellee Holmes lived at Wingo, Kentucky, ten miles south of Mayfield, and thirty-three mile’s from Paducah. On the day of the accident appellee bought a round-trip ticket from Wingo to Paducah and took a train for the last named town. After arriving at Paducah he attended to some business, bought some cigarettes and then a friend said to him, “Let’s go over and buy a drink;” he took one drink of whiskey in the forenoon and then ate dinner. About three o’clock in the afternoon he took another drink. Both of these drinks appellee says were small. While in Paducah he purchased for a friend a pint of whiskey and put it in his hip pocket; he also bought four quarts of whiskey which he put in his handbag for two friends; about 4:30 p. m. he boarded the train at Paducah for Wingo, carrying with him his handbag. About the time he arrived at
All these matters considered, we are constrained to the view that there was not only evidence sufficient to carry the case to the jury, hut ample evidence to support the verdict.
Judgment affirmed.