143 Ky. 383 | Ky. Ct. App. | 1911
Lead Opinion
Opinion of the Court by
Affirming.
Upon the last trial the evidence as to how the collision occurred was practically the same as upon the former trial, and at the conclusion thereof the court instruct ed the jury to find for the defendant, which was done. Plaintiff appeals.
The chief ground relied upon for reversal is the failure of the trial court to permit the depositions of three Tennessee lawyers to be read to the jury. These depositions are in the record. No exceptions- were filed to them, and the trial court must have rejected them because he regarded them as irrelevant or incompetent. In the former opinion it is stated that:
“By the law of Tennessee, the men on one train in the service of the railroad are fellow-servants of the men on another train, and no recovery can be had by one for an injury due to the negligence of the other.”
Plaintiff’s counsel interpreted this language to mean that he must lose his case unless he could show that the law of Tennessee was different from what it was proven to be on the former trial, and hence he offered the depositions in question.
Technically speaking, the court should have permitted these depositions to be read, for, as said by this court in P. C. C. & St. L. R. R. Co. v. Austin’s Admr., 141 Ky., 722:
“We do not take judicial knowledge of the law of another State. What is the law of another State, is a fact to be shown by evidence, and we must decide the case upon the evidence in the record on the subject. (Union Central Life Insurance Co. v. Dukes, 132 Ky., 370; L. & N. R. R. Co. v. Smith, 135 Ky., 462; Yellow Poplar Lumber Co. v. Ford, 141 Ky., 5.) If the Supreme Court of Indiana in its later opinions has relaxed the rule laid down in its earlier opinions, appellee should introduce evidence to show this. A court of this State-cannot go through all the decisions of the Supreme Court of another State and determine for itself what the law of that State is. When a witness is introduced in a case*385 pending here, and states that certain opinions of the Supreme Court of another State establish a certain proposition, as the proper construction of a writing is a question for the court, not the jury, the court trying the case may read these decisions itself and determine their ef-feet. But it cannot disregard the conclusion of the witness when it has not before it the facts upon which the witness bases his conclusion. When a witness testifies to the law of another State, he may be required on cross-examination to state on what decisions of the Supreme Court of the State or other authority he bases his judgment, and to file with his deposition copies of the opinion or authority relied on. When the witness refers to the. opinions of the Supreme Court of another State as the basis for his conclusion, and files a copy of the opinions with the deposition, or where the books are accessible to the trial court, and by consent of parties he gives the style of the case and page of the book where it is found, then the court trying the case may read the opinion or opinions so designated, and see if they support the conclusion of the witness. Where the testimony is conflicting as to what the law of another State is, and the witnesses reaching conflicting conclusions, give the opinion of the State Court on which their conclusions are based, a court of this State may, in an action.pending here, read the opinion so designated for itself, and determine what is the proper construction to be placed upon them. In such an event the court should instruct the jury as to the law of the ease just as he would instruct the jnry as to the law of the case when governed by the laws of this State. In other words, the court must then determine what the law of the other State is by reading the indicated opinions themselves, and tell the jury what is the law of the case. (2 Wharton Conflict of Laws, Sec. 773.)”
The foregoing excerpt from the Austin case is the latest enunciation of this court upon the subject, and while that opinion was subsequently withdrawn, it was upon a question of practice, which in no wise affected the question under consideration.-
An examination of these depositions shows that, in all material respects, the law of Tennessee is as proven before, and the trial court, evidently having reached this . conclusion, rejected them. If he had permitted them to be read he would have had to pass upon their sufficiency and determine whether or not they showed the law of that
Much time and consideration is given by counsel in an effort to show either that the leaky engine or the failure or neglect of the company to notify those in charge of Keiffer’s train of the breakdown of the train in front of them was the proximate cause of his injury. On practically the facts presented in this record, upon the former appeal, we said that the leaky engine was not the proximate cause, but that it was either the negligence of the flagman on the first train or that of Keiffer and his associates on the second train;, and, under the rule repeatedly announced by this court, that opinion is the law of this case, and we will not again enter upon a consideration of those questions, as they are settled. Gray Tie & Lumber Co. v. Farmers Bank, 24 Rep., 2319; Wilson’s Assignees v. Louisville Banking Co., 25 Rep., 1065; Fidelity & Deposit Co. of Md. v. Same, Id.; A. Booth & Co. v. Bethel, 25 Rep., 1747.
Under the former opinion, plaintiff, in order to have his case submitted to the jury, must have presented either a different state of facts, or shown that the law of' the State of Tennessee upon the same state of facts was different from what it was proven on the former trial. The evidence presented met neither of these necessary prerequisites, and the judgment is, therefore, affirmed.
Dissenting Opinion
Dissenting opinion bt
This is the second appeal of this case. The opinion on the first appeal may be found in 132 Ky., 419; 113 S. W., 433. It will be observed that appellant alleged in his petition, in substance, that appellee and its agents and servants with gross negligence caused the track to be obstructed with a leaky and defective engine; that defendant, appellee now, was guilty of gross negligence in fail
The first trial resulted in a verdict for $16,000 in behalf of Keiffer, but was set aside by the lower court. On the second trial he recovered a verdict for $25,000 upon which the lower court rendered judgment, but it was reversed upon appeal to this court. (L. & N. R. R. Co. v. Keiffer, supra.) It will be noticed that the case was reversed' for the reason that the evidence appearing in the record on that appeal, showed, according to the Tennessee Law, that the servants on Keiffer’s train and those in charge of the train collided with, were fellow-servants. It was also determined that the servants in charge of the train collided with were negligent in failing to notify appellant of the delay of it, but that, as they were fellow-servants with those in charge of Keiffer’s train, Keiffer could not recover for their negligence. The court also decided that according to the testimony before it on that trial, appellant was guilty of contributory negligence which helped to produce his injuries; that his contributory negligence consisted in approaching Big Sandy at too high rate of speed and in colliding with the other train. It was further decided that the leaky engine was not the proximate cause of his injuries.
After the mandate of this court was issued and filed, another trial was had in the lower court upon the same issues, and it resulted in a peremptory instruction in be
“When a case is once before, the appellate court, what is then said with respect to the law applicable to it is to be thereafter deemed the law of the case., binding alike upon the appellate court and the trial court. This depends, of course, upon whether substantially the same facts are made to appear -on the subsequent trial; for it is recognized that the law varies or may vary according as the facts vary. If, therefore, the facts developed on the second trial are materially different upon any controlling issue from the aspect presented by the former record, the la.w may be also different.”
In extending the opinion in the case of L. & N. R. R. Co. v. Irby, By, et al., 142 Ky., 273, the court said:
“Appellant filed a petition for a modification of the opinion in. this case and insists that the court misconstrued the testimony as to whose duty it was to give the signal for the separation of the cars at the time Irby was- injured. Conceding this to be true, which we do not decide, the case is not to be tried upon the testimony of the last trial, but is to be governed by the testimony on the future trial, and if there should be a conflict on this point, then the court should also submit that issue to the jury.”
The law being as stated in the two above quotations, it becomes necessary to.see to what extent the testimony 'on the last trial of this case differs from that produced upon the former trial, if any. Appellee did not produce anv proof upon the last trial, but upon the former trial it had proof as to the law of Tennessee showing that the servants in charge of the train collided- with, were fellow-servants of appellant. It also had evidence upon that trial which tended strongly to show that appellant was guilty of contributory negligence in managing his train, and also evidence of facts which, according to the Ten
“Where a party seeks to recover or defend under a foreign law, such law must be pleaded and proved like any other fact; hut in the absence of averment and proof, the rule is that foreign States, whose system of jurisprudence is derived from the same source as our own, are presumed to he governed by the same law.”
There was no testimony introduced in the last trial showing what the law of Tennessee was; therefore, the case must be determined according to the law of this State. I will state the substance of the testimony on the last trial in order to determine whether appellant made out a case. Appellant was engineer on train No. Ill, one of the appellee’s freight trains which was to run from, Bowling Green, Ky., to Paris, Tenn., or further. Train No. 115, consisting of two sections, second and third, left Bowling Green ahead of him. The second section had a leaky engine, hut appellant had no information of that fact. When appellant arrived with his train at Erin, Tenn., he and his conductor received orders staff ing that sections two and three of train No. 115, had
“Q. What sort of a jar was it when Keiffer struck you ? ’ ’
“A. It was light, it didn’t shove the engine more than four feet.”
“ Q. Do you know whether the markers were burning on the hind end of Rainey's train at Big Sandy?”
“A. No, sir.”
Rainey was the conductor in charge of the doubleheader. This leaky engine was brought to Bowling Green on the evening before appellant’s train went out, in a leaky condition, and was reported upon the books of the company and to the persons whose duty it was to repair it. Under this evidence, appellant was not in fault; he knew nothing about the leaky engine; was running his train at less than the usual rate and the rate allowed by the company, when he started down this mile of straight track approaching Big Sandy where the double-header was. Appellant, the fireman and flagman testified that there were no lights on the rear of the
It is conceded in this ease that the law of Tennessee and Kentucky is the same with reference to the duty of the employer in furnishing the employe safe and suitable tracks and machinery to labor with, and that neither State holds that the train dispatcher, the telegraph operator or the conductor was a fellow-servant of Keiffer. As we have seen, appellee placed on the track ahead of appellant’s train another train pulled by a leaky engine which gave those in charge of it much trouble, and failed to give appellant any notice of that fact at any time.
Upon the last trial appellee introduced the following ' order, or message, to- wit:
“Message. Form 133.
“Louisville & Nashville Railroad Co.
“To 111. . 8-19, 1904.
. “2nd 115 has instructions to let you by when overtaken. Look out for circus loading at Paris just south of depot. A. B. S.
“J. H. E.”
Appellant testified that he did not receive this message and that it was the duty of his conductor, Grady, and also the operator to give him a copy of all train orders governing the movement of his train; that if he had received the message above copied, he would not have been injured; that he would have made inquiry of the operator at Erin or Tennessee Ridge as to the cause of the delay of second 115 and in that way would have found out that it had a leaky engine. He said that if he had received that message it wo.uld have been his duty as engineer to make such inquiry, and introduced three other expert engineers who testified to the same thing. Appellee’s counsel suggest, in their briefs, that this message is a fake; that no such message was ever issued. The facts with reference to this matter are, in substance, these: The message purported to have been incorporated in the bill of evidence on the former trial, on page 291, and is there just as copied. The official stenographer, Mrs. Galloway, testified that in taking the testimony on
.“Pasted back in this record Nov. 6, 1909, by W. H. Jones. W-. H. Jones, Clerk.”
The fact is, this message was not introduced on the first trial, and if appellant or any one interested with him, mutilated the record and inserted it therein, it was a great crime and they ought to be punished. The more reasonable presumption would be that appellee’s attorney had this message during the first trial but did not introduced it, but placed it with the others they had introduced, for safe keeping until the time to make up the bill of evidence and handed it, by mistake, to Mrs. Galloway when she called for the others to copy, and in that way it was inserted in the record. If such an order was issued, it was certainly negligence in the telegraph operator and Grady, appellant’s conductor, not to deliver it to him before the collision. The only question is whether appellant made any proof of that fact or not. It appears to have had reference to the movements of appellant’s
“This train on that day was behind time, so far as the proof shows, at all the stations after leaving Lexington, and instead of reaching Eminence at 1:45 p. m., did not reach that place until 5:36 p. m., making it behind its time when leaving there near four hours. After it left Eminence, and before reaching LaGrange, and at a point two and a half miles east of the latter town, in attempting to run an ascending grade, either for the want of steam or on account of the incapacity of the engine, the train failed to ascend, and there remained on the track until it was run into by an extra train, on which the deceased was engineer and Anderson conductor, running in the same direction, resulting in the loss of Cavens’ life and much injury .to .others. * *
“There were telegraph .stations at Fiankfort, Bag-dad, Eminence and LaGrange, and although the morning freight train, bound for Louisville under the control of Armstrong as conductor was behind time at Frankfort,*395 Bagdad and Eminence," and Rad not reached LaGrange ■when due at that place by its regular time-table five hours prior to the accident, and these delays all known at the office of the train-dispatcher at Louisville, as well as the fact that this wild-train was then on its way to LaGfrange under orders to run as fast as was safe, no information by telegraph or otherwise was given Anderson, the conductor, in order that he might avoid the impeding danger. * * . *
“It is not pretended that this train of Anderson’s was encroaching upon the time of any other train, and certainly not of the train under Armstrong, as they were both running in the same direction, and when the accident occurred Armstrong’s train was five hours behind time. It is also insisted by the company, based upon the same testimony, that the only means that Anderson had of knowing that Armstrong’s train was in his way was by seeing it upon the track, or by the signals given, or by making inquiry of persons at the various stations. If this inquiry had been made by Anderson at either Erankfort, Bagdad or Eminence, the response would have been that Armstrong’s train was at least an hour in advance of him, as such was the case, and he would Iiave felt entirely secure in making the speed required of him by the order; hence the necessity of communicating to Anderson the facts so essential to the safety of his train and those upon it, and the discharge of so plain a duty would have saved the life of the unfortunate engineer.”
The Cavens case is very similar to the one at bar. If the telegraph operators at any of the stations along the route had given appellant notice of the condition of the ¡second section of train No. 115, he could have protected himself, therefore the train dispatcher or operators were •certainly negligent in failing to discharge so plain a duty. 'The depositions offered by appellant and which were rejected on motion of appellee’s counsel, were filed as a part of the record on this appeal, and prove the Tennessee law to be, with reference to the question under consideration, the same as the law of Kentucky.
This court decided on the former appeal that, according to the evidence as it appeared on that appeal and the law of Tennessee, the leaky engine and the broken draw-head were not the proximate cause of appellant’s inju
“So, where two causes combine to produce an injury and both are proximate in their character, the one being the result of negligence of the defendant and the other an occurrence as to which neither the plaintiff nor the defendant was at -fault, the defendant would be liable, if the injury would not have happened but for his negligence. And if the injury is the result of two or more causes, all of which can be traceable to the negligence of the defendant, he would be liable therefor and the question of probable or remote cause would not enter into the question. Nor would it defeat the plaintiff’s action that the injury resulted from the concurrent negligence of the defendant and another, for neither of the wrongdoers could relieve himself by setting up the negligence of the other.”
This question should, at least, be submitted to a jury under proper instructions, as it is a matter for them to decide. In the case of L. & N. R. R. Co. v. Ewing’s Admx., 117 Ky., 624, it is said:
“It is urged by appellant that no instruction should have been given submitting the question of the first conductor’s negligence. This contention is based solely upon the ground that that negligence, even if found to exist, was not the proximate cause of the injury. So the question is at least, was the negligence of the conductor of the other train so remote as that, as a matter of law, the court should have instructed the jury that they could*397 not consider it? If there he doubt as to whether the injury was the result of a particular act or of another closer connected, or if there be doubt whether there was or was not an intervening and independent agency between the original act and the injury, that is, where different minds may draw different conclusions from the fact, the question whether the- injury is the proximate result of the causes complained of, we say unhesitatingly, should be submitted to the jury for determination. * * * Sometimes it is a very difficult thing to say just what was a proximate cause of a result. It is, therefore, the rule, in determining upon such a fact, to leave it to the jury, who from experience and observation in such matters are thought to be best able to satisfactorily solve it.”
See also the case of the City of Louisville v. Hart’s Admr., opinion delivered April 17, 1911.
My reasons for dissenting from the original opinion were as follows: It was said in that opinion that the disabled engine was not the proximate cause of Keiffer’s injuries. While it-was not the only cause of his injuries, it was a concurrent cause. Another reason was that I believed the court misconstrued the Dillard case when it said that according to it the crew on appellant’s train were, under all circumstances, fellow-servants to the crew in charge of the train collided with. The law of Tennessee makes exceptions to -the rule that a crew in charge of one train are fellow-servants to those'in charge of another, and I believe the facts in the case at bar make it fall within one of those exceptions. The law of both Tennessee and Kentucky is to the effect 'that it is the duty of the master to furnish the servant a reasonably safe place to work and reasonably safe, appliances with which to perform his labor. When appellee in the case at bar furnished its servants the leaky engine on second 115, which together with the broken draw-head at Big Sandy caused ten or twelve cars on the rear of the train to become immovable, thereby created an obstruction upon the track. Under this state of facts the law of Tennessee, both before and since the Dillard case, makes the conductor, Rainey, in the case at bar, of the disabled and delayed train, the vice-principal, that is, he represented the master for the time being in providing the other employes, Keiffer in this case, a safe track upon which to operate their trains. This matter was decided by this court with
' One of the surprising statements in the opinion delivered today is as follows:
“Upon the last trial the evidence as-to how the collision occurred was practically the same as upon the former trial.”
Again:
“Under the former opinion, plaintiff, in order to have his case submitted to the jury, must have presented either a different state of facts, or shown that the law*400 of the State of Tennessee upon the same state of facts was different from what it was proven.on the former trial. ’ ’
Appellee introduced no evidence upon the last trial. The law of Tennessee was not proved upon the last trial, and as appellee had made allegations with reference thereto, which were denied, it was its duty to prove it. The facts proved on the last trial were very different from those proved on the former trial, and there was nothing showing that appellant was guilty of contributory negligence. If the depositions offered by appellant on the last trial had been admitted, the testimony would have been very different as to the law of Tennessee from what it was shown to he on the former.
It appears from the opinion that this court recognizes the propriety and right of a court to examine records not in evidence and to consider facts found there in determining whether or not a peremptory instruction should be given. I have always been advised and, believed that a court in passing upon such matters should consider alone the testimony introduced, and that the law of other states, when relied upon either for a cause of action or as a defense, should be pleaded and proved as any other fact; and how this court arrived at the conclusion that the testimony in the three rejected depositions was, in substance, the same as the proof on the former trial, is beyond my comprehension.
For these reasons, I dissent.
