140 Ky. 447 | Ky. Ct. App. | 1910
Opinion of the Court ey
Affirming.
This is an. appeal from a judgment for $3,000 recovered bv appellee against appellant, L. & N. E. E. Co., for injuries inflicted by the alleged negligence of the agents of appellant in charge of a passenger train, upon entering the station yards in Lexington, Kentucky.
The action was instituted against appellant and the Lexington Union Station Company, which operates the station in the city of Lexington. After the evidence was introduced, the court sustained a motion for a peremptory instruction in behalf of the station company, and the judgment was rendered against appellant alone. There are four tracks at the station; number one is next to and
Appellant filed- an answer controverting the affirmative matter of the petition and pleaded contributory negligence on the part of appellee. Appellant, in its original brief, presents three grounds for a reversal, and four additional grounds in a supplemental brief. It is claimed the court erred in permitting appellee at the conclusion of his evidence to file an amended petition, making a new issue, and that the court also erred in refusing to sustain its motion to discharge the jury and continue the ease after permitting the pleading to be filed. Appellee described his injuries minutely in his original petition, and stated that he had been unable to labor at his calling, car inspecting. There was testimony introduced upon the trial without objections, showing that he had been unable to labor in any capacity since he received his injuries, and the amendment simply set forth this fact to conform the pleadings to the proof, and it was on account of the filing of this amendment that appellant asked that the jury be discharged and the case continued, which motion the court overruled. As stated, the original petition alleged in detail appellee’s impaired sight, loss of hearing, defective memory, &c., which were of a character to affect a person’s capacity to earn a living at any kind of employment, and these things were denied by the answer which formed an issue as to the extent of appellee’s injuries and his ability to earn money at his calling, and we think it fair to presume that appellant used the same diligence in preparing for the trial of those issues as it would have used had appellee alleged in his original petition his loss of time and inability to earn money at any employment. The effect of the amendment was to change neither the cause of action nor the issues as to the specific injuries, but merely to broaden the allegations as to the result of his injuries. Appellant did not introduce any proof contradicting appellee’s as to the character, extent and effect of his injuries. The trial court is vested with a
Appellant complains that the trial court erred in permitting appellee to introduce incompetent testimony prejudicial to it. This complaint is founded upon the fact that appellee introduced himself and seven or eight other witnesses who testified that it was the invariable rule and custom for the L. & N. passenger trains coming from the west to run in on track number one. This testimony was introduced while the Union Station Company was a defendant, and was for the purpose of showing negligence on the part of that.company in permitting the L. & N. passenger train number 37 to go in on track number three, and for the purpose of relieving appellee of the charge of contributory negligence in not discovering and avoiding the train which injured him.. It was not introduced for the purpose, and it did not have the effect to show negligence on the part of those in control of train number 37. Appellee and several witnesses testified that in passing the switch near Limestone street, just after leaving the lunch stand, they sáw that it was set to run train number 37 in on track number one, and that appellee walked along’ the ends of the ties on the outside of the south rail of track number three. Appellee stated that he felt secure there as there was no train due to run upon that track; that he did not walk between the tracks numbers three and four because some repair work was being done between the tracks and it was rough. This position of appellee was shown by all the witnesses who testified upon the subject, except the engineer in charge of the train that struck him. This testimony was competent in defense of the charge of contributory negligence on the part of appellee. The fireman on number 37 stated that he did not see appellee at any time before he was struck. The engineer.was the only person on the train who did see him, and he testified that he first noticed him moving east in the .yards when he, the wit
The complaint of errors in the instruction given, is not well founded. It is true, the law might have been expressed in more explicit language, but they are such as have often been approved by this court. The jury could not have misunderstood them. The evidence is overwhelming to the effect that appellee had a right to belieAm that it was perfectly safe to walk upon the ends of the ties of track three, and when the engineer saw him upon the track, he knew it was the custom for his train to go in on track one and this was sufficient notice to him that appellee felt secure in walking upon track three, and his failure to give him warning of his danger, under the circumstances, was negligence. The engineer admits that he did not blow the whistle until about the time the engine struck appellee. It is true, he stated that appellee was walking between the tracks and in the clear, hut he is overwhelmed in this by the other testimony in,the case.
Appellant presents in its supplemental brief, with great force, what is known as “the last clear chance doctrine,” and contends that if properly applied it would
The matters presented for a reversal as to the incompetency of the juror Adams and the alleged improper remarks of counsel for appellee in his closing speech, are trivial and did not operate to appellant’s prejudice in any “respect. The verdict is small, and upon the whole case we believe appellant had a fair and impartial trial.
For these reasons, the judgment of the lower court is affirmed.