179 Ky. 625 | Ky. Ct. App. | 1918
Opinion op the -Court by
Affirming.
On the first trial, as well as on the second one, the evidence showed that the cable which produced the injury was owned by the Home Telephone Company, with which, the defendant had no connection, and therefore had no control over either the construction or the maintenance of the cable. It was attached to hangers, which in turn were screwed to posts on either side of the track and occupied an elevation when so constructed of about twenty-
, “The cable became a menace to appellant’s employees the moment it came within the space occupied by appellant in the mov.ement of its trains, and from then on appellant’s duty of inspection demanded that appellant should have discovered it as soon as it could have been done by the use of ordinary care, and if said cable had been down, as it was when it struck appellee, or even loose from its support, for a sufficient time for appellant in the exercise of ordinary care to have discovered it, appellant would be liable, but it is here that appellee’s evidence failed. There is absolutely no evidence when the cable sagged, and from the evidence in the case it might reasonably be concluded to have done so at the very instant it struck appellee. If this were true then, of course, appel
' On the second trial tbe plaintiff introduced for tbe first time a "witness by tbe name of Poindexter, whose testimony, if true, supplied tbe omission pointed out in tbe first opinion and did ‘ ‘ show bow long before tbis accident tbe cable bad sagged to tbe position where it became a menace to appellant’s employees upon tbe top of its trains passing under tbe cable,” and which testimony removed tbe objection to the first judgment that “there is absolutely no evidence when tbe cable sagged. ’ ’ Tbe substance of Poindexter’s testimony is that on Saturday before tbe accident,^which occurred on Sunday, at about six o’clock a. m., be* went from Barbourville, near which place be lived, to Middlesboro, and that at nine o’clock a. m. of that day be went to tbe depot at tbe latter place to board a train for bis return trip but it bad passed, and while there be and a friend who is now in tbe United States army in walking around tbe depot noticed tbe cable in its fallen clown condition, and that it- was then not exceeding sixteen or eighteen feet above tbe rails of tbe track. When tbe train on which plaintiff was hurt was passing through Barbourville tbe following Sunday, Poindexter noticed tbe evidence of plaintiff’s injury, and upon inquiry learned that be bad been hurt by tbe cable at Middlesboro, whereupon tbe witness told plaintiff what he bad seen tbe day before. At that time plaintiff did not know tbe name of tbe witness or where be lived, and be offers' tbis as an excuse for not having the witness present at bis first trial. There is no positive evidence contradicting tbe testimony of Poindexter concerning tbe condition of tbe cable as testified to by him on Saturday morning before 'the injury tbe next day between twelve and one o’clock, except negative and somewhat vague testimony given by tbe section boss and tbe track walker at Middlesboro to tbe effect that they did not see tbe fallen condition of tbe cable at any time after Poindexter claims to bave seen it until after tbe accident. They show that they could bave seen it bad they looked, but neither of them — nor does any other witness — state that they made an actual observation of tbe cable between those times. In fact tbe track walker positively states that be did not look at tbe cable while performing bis duties as such employee, and on the first trial tbe section boss stated positively that be did not notice tbe cable between
It must not be forgotten that although the cable in its fallen condition would come in contact with one standing on top of a car, yet it was high enough to permit a train to.pass under it. The testimony of the telephone men corroborate that of Poindexter as to the position of the cable in its fallen condition, and upon the whole case we do not find sufficient testimony in the record, either direct or circumstantial, to authorize the jury or this court upon appeal to discard his testimony as being wholly incredible. On the contrary, we find corroborating circumstances entitling it to belief, although his statement that he went to Middlesboro on the day in question “just to be going” is not altogether convincing. These matters, however, were preeminently for the jury. It has shown by its verdict that it accepted this new testimony, and under the well known rules of practice in this state we are not authorized to disturb its finding upon this issue.
Counsel for appellant insist that this appeal presents conditions where “The Law of the Case” rule should be applied, and in support of that contention he cites many cases from this court, among which are Louisville & Nashville Railroad Company v. Schmetzer, 94 Ky. 424; L. & N. R. R. Co. v. Ricketts, 52 S. W. 939; L. & N. R. R.
It is conceded (as was held on the former appeal) that defendant owed to its employees on its train to which plaintiff belonged the duty to exercise ordinary care to discover dangers and to render reasonably safe the place where plaintiff was required to perform his duties. Whether by the exercise of such care it could have discovered the danger which produced the accident from the time Poindexter first saw it, as he testified, and could have remedied it before the plaintiff was hurt, was a question peculiarly for the jury.
Answering this, we might say that the record is not altogether barren of testimony and circumstances from which the jury might be authorized to find such actual knowledge, but if it were, we are not to presume that the jury based its verdict upon such actual knowledge if there was no evidence to support it, but rather would it be concluded that the verdict was based upon the other condition amply supported by the testimony, viz.: “ Or by the exercise of ordinary care could have known thereof. ’ ’ If therefore the criticism be well founded, the error is of such a nature as not to be prejudicial.
Lastly, it is complained that the verdict is excessive. On that point it is fairly well shown that the plaintiff received a considerable wrench by his contact with the cable to his neck, side and back. While the skin was not penetrated at the place, the cuticle was roughed up and made to inflame. He suffered considerably, and had three doctors to treat him at different times. He worked no more at his old job, but after some weeks he tried to do work in a coal mine, but the work was found to be too heavy and he was unable to perform it. His neck, side and back still pain him, and he is practically disabled, according to his testimony, from lifting heavy objects. This disqualifies him from doing many kinds of work. He was stout and healthy before being injured, and while
Upon the whole case we find no substantial error against the rights of the defendant, and the judgment is therefore affirmed.