183 Ky. 795 | Ky. Ct. App. | 1919
Reversing.
Charles Baker, as administrator of Eugene Baker, instituted this action in the court below against defendant seeking damages for the death of his intestate, it being alleged in the petition that decedent was assaulted and ejected from a train near Ford, Ky., and thereby caused to lose his life. From a verdict in favor of the plaintiff this appeal is prosecuted.
The contention of the defendant is that a peremptory instruction should have been given in its behalf. . It also complains of the instruction given and of counsel’s argument to the jury.
The case is beset with some rather unusual circumstances. Decedent lived in Richmond, and it appears that in company with several companions he started in the direction of Winchester on the afternoon of December 22,1914. According to the expression of some of the witnesses they were “hoboing;” i. e., they had taken passage on a freight train without paying therefor, in other words “beating their way.” The time they left Richmond is uncertain. Three witnesses testified to having seen decedent get off a train at Shearer, a station north of Ford, and a like number saw him get on a train there northbound; five witnesses testified to having seen decedent in Winchester the evening of the accident; most of these had gone to Winchester for the purpose of getting whiskey; several of the witnesses testified they saw Baker at the depot that night waiting for a train to take him to Richmond or Berea, and two testified that they got on a southbound train at Winchester that night with the decedent and were in' the smoking car of defendant’s train. This train is known as No. 31". One of these witnesses, Grover Neal, testified that decedent had a little argument with defendant’s conductor, but there was so much noise he could not tell what they were talking about. This argument took place along about Elkin, which is a station a short distance north of Ford, and after the argument started he left decedent and the conductor, going to another part of the car, and when he returned in ten or fifteen minutes afterwards he did not see the decedent, but he saw a hat “lying there” which looked like decedent’s hat. David Himes, the other witness, testified as follows: “Q. How long did Eugene Baker stay on that train 1 A. Well, I couldn’t say. Not
On cross-examination Avitness testified as follows: “Q. And you say that lxe and the conductor got to talking axxd xxhen they got to talking you went back into the other car? A. Yes, sir. Q. Had the conductor taken hold of him? A. Yes, sir, the conductor, T believe, liad
This, in substance, is the testimony introduced on behalf of the plaintiff. For the defendant its conductor and flagman on the southbound train testified that decedent was not a passenger on their train; they had no difficulty of any kind, and that the events- testified to by the witnesses Neal and Himes did not occur. ■
j: D. Johnson and his brother Oscar Johnson had gone to the station at Ford to meet their brother Jesse who was coming home for the holidays. They were walking along the track to keep their blood in circulation, and the younger of the two discovered something lying between the rails, and upon examination they found it was a man,-and they dragged him off the track. This was before the arrival of No. 31. Seeing a light in the home of operator Johnson, they notified him, also Sheeler, the agent at Ford, and .after reaching the latter’s house they beard No. 31 whistle and hastened back to the station and g’ot there just at the time the train arrived. They say it was 20 to 30 minutes from the time they first discovered this body until the train arrived and the body ■was there when they reached the station after notifying-Johnson and Sheeler.
J. F. Johnson, the company’s operator at Shearer, lived a.t Ford. He testified that shortly after he reached his home that night, and before the arrival of No. 31, J. D. Johnson and Oscar Johnson came to his house and told him “they had found this man on the track — killed. ” Pie told them to notify Mr. Sheeler, and this it appears they did. Sheeler testifies that on that night, fifteen or twenty minutes before the arrival of No. 31, and after he retired, J. D. Johnson notified him there was a dead
E. K. Broaddus, a school teacher at Ford, and Dr. J. T. Pennington that same evening had been at a social, gathering on the Madison county side of the river from Ford. They passed the station between eleven and eleven-thirty, and they saw this body from 15 to 20 minutes before the arrival of No. 31.
The flagman on the passenger train testified that when the train reached Ford lie saw the body of a man on the platform; thus we have at least six witnesses who saw the body that was identified as that of Eugene Baker on the platform at Ford from 15 to 30 minutes before the arrival of No. 31, and four of these are disinterested witnesses, whose credibility and character are unimpeached, but as to the two witnesses for the plaintiff, who detailed the events on the train, their credibility is attacked. Hence, we have two states of facts that are irreconcilable. If decedent was in Winchester and became a passenger on train No. 31, then the witnesses for defendant could not have seen his dead body at Ford some time before the arrival of that train, or conversely stated, if the witnesses for the defendant’are correct, then those who testified in behalf of plaintiff could not have seen him in Winchester at the time stated nor could he have taken passage on No. 31.
Counsel for the defendant, with great vigor and earnestness, insist there was no evidence to take the case to the jury. It is a close case on the facts. We understand the rule to be that where there is any evidence for the plaintiff, or any. fact shown from which the inference may be plainly drawn that the accident occurred as testified to by witnesses in his behalf, the question is one for the jury, although the evidence for the defendant may be to the effect that the accident happened in an entirely different manner. To entitle defendant to a peremptory instruction the rule in this state is, that if,, after admitting every fact shown by the plaintiff’s evidence to be true as well as all reasonable inferences that can be drawn therefrom, the plaintiff failed to establish his case, a peremptory is proper. Two juries have found for the plaintiff in this case. The reason for the granting of a new trial after
Under sub-sectio'n 6 of section 340 of the Code, a new trial is authorized when the verdict or decision is not sustained by sufficient evidence. Under this section the court will not set aside a verdict merely because it is against the preponderance or weight of the evidence, nor because of the numerical superiority of witnesses. The verdict must be flagrantly against the weight of the evidence. But when such a state of case is presented it is not only the .right but the duty of the court to reverse and remand for a new trial. Continental Ins. Co. of N. Y. v. Hargrove, 131 Ky. 837, 143 Ky. 400; Vincent, etc. v. Willis, 26 Rep. 842; C. & O. Ry. Co., et al. v. Johnson, 145 Ky. 481, 151 Ky. 809; I. C. R. R. Co. v. Long, 146 Ky. 170; C. N. O. & T. P. Ry. Co. v. Martin, 146 Ky. 260, 154 Ky. 348; Wickliffe Mfg. Co. v. Wilson, 169 Ky. 468; North Jellico Coal Co. v. Stewart, 173 Ky. 745. The verdict in this ease being so clearly and palpably against the evidence a reversal must be ordered.
Wherefore the judgment of the lower court is reversed for further proceedings consistent with this opinion.