171 Ky. 500 | Ky. Ct. App. | 1916
Opinion of the Court by
Eeversing.
Claiming to have been injured by being thrown from his vehicle, through his horse becoming frightened and running away, because of the negligence of the servants of appellee (defendant) in managing and operating a hand car at Conway Crossing in Franklin County, the appellee (plaintiff) brought this suit to recover damages for his injuries, and obtained a verdict for $5,000.00, upon which judgment was rendered, and to reverse that judgment this appeal is prosecuted.
It is alleged, in substance, in the petition, that as plaintiff approached the railroad track upon the highway, the servants of the defendant partially blocked the crossing with the hand car which, as he claims, at least slightly frightened his horse, but that he coaxed him by the car, and just as the wheels of his vehicle were between the rails of the track, with his horse, of course, beyond the rails, those in charge of the hand car made a sudden and unusual start or jerk of the car so as to produce a loud and unusual noise, which caused his horse to lunge, and in the runaway which followed he was thrown from his vehicle against a rock, or some hard substance, whereby he sustained the injuries of which he complains. The. answer is a traverse of the petition and a plea of contributory negligence.
Upon the trial the plaintiff testified in substance that the accident occurred somewhere between seven and seven-thirty a. m.; that as he approached the railroad track, and when in about 48 yards of it, he -saw the hand car, which was at that time on the ground, near the railroad track, and that it was picked up by the servants of the defendant and placed upon the track, with the handle bars extending out over the edge of the highway to something near the middle of it; that about that time his horse threw up his head and showed in dications of fright, but
As to the injuries, the testimony of plaintiff shows that when he fell he struck some part of his shoulder, and for a very short while had a headache, but this soon passed away, leaving him with severe pains in his back;
The motion for a new trial was filed on the 19th day of September, 1914, and before it was acted upon, and on the 30th day of September following, the motion was amended whereby newly-discovered evidence was relied on. This newly-discovered evidence is that of Dr. O. B. Demarre, who, according to his affidavit, and that of defendant’s attorney, was the family physician of the plaintiff in Franklin County from 1892 until 1908, and that he frequently examined and treated the plaintiff, who, during all that time, “was afflicted with what is known as Potts’ disease, and as a result thereof had a well-defined
The question, then, is — does his testimony bring the case within the rule of this court permitting a new trial for newly-discovered evidence? This court is reluctant to grant a new trial upon newly-discovered evidence, adhering to the rule that public interest is best subserved by bringing about as speedy trials as possible, and the resultant termination of litigation. To this end, it is the firmly established rule that newly-discovered evidence, which is purely cumulative, will not authorize the granting of a new trial. But this policy of the court, as applied to the granting of new trials, should not be followed at the expense of the paramount purpose of all trials, which is to administer justice between the parties; and notwithstanding the above policy, long followed by this court, the qualifying rule has been adopted that where the newly-discovered 'evidence is not altogether cumulative, and is of a decisive nature, and such as to render a different result reasonably certain, and most probably would have affected the verdict of the jury, if due diligence is shown in discovering and producing it, a new trial will be granted. Many cases from this court hold to the rule just stated, the latest of which are: Anshutz v. Louisville Railway Company, 152 Ky. 741; South Covington & C. St. Ry. Company v. Lee, 153 Ky. 621; Weaks v. McDowell Construction Co., Idem, 691;
In the Anshutz case the conditions were very similar to those we have here. It was a personal injury case. The plaintiff, a lady, upon the trial was found to be afflicted with a tumor, which she claimed, and the evidence tended to establish it, was produced by the accident. It necessarily had great weight with the jury in fixing the amount of her damages. It was afterwards demonstrated by a process of nature that the supposed tumor was not one a.t all, but something entirely different, as will be seen by a reference to the case, and after this discovery was'made a petition for a new trial was filed in the court, because of the discovery of this new evidence. In that case this newly-discovered evidence, as to the cause of the supposed tumor, was as much cumulative as is the proffered testimony of Dr. Demarre in the instant case, and while the newly-discovered testimony in that case was more convincing than that of Dr. Demarre in this case, still that question goes only to the credibility of the testimony, and not to its admissibility. As we have seen in the case we are considering, there was at least no professional testimony that the condition of plaintiff’s spine antedated the accident, and to this extent the newly-discoverecl evidence is not purely cumulative. Indeed it is not insisted that this evidence is of the cumulative character which would prevent the granting of a new trial because of it, the chief contention of appellee being that due diligence was not shown to discover this testimony, a point which we have already considered. iWhen we look at the size of the verdict, examine the evidence and find that the chief injury which plaintiff claims to have sustained is the condition of his spine, we are forced to the conclusion that the evidence of Dr. Demarre is of such a decisive nature as to make it reasonably certain that a different verdict may have been reached by the jury.
The rule authorizing a new trial for such newly-discovered evidence, to which we have adverted, is well stated in the last case referred to, when this court says: “Prom an examination of all these cases .the rule is to be deduced that where the newly-discovered evidence is of such conclusive nature, or even of such decisive or preponderating- character, that it would with reasonable
In view of the fact that there must be a new trial, it is necessary that we consider the objections made to the instructions which the court gave to the jury. It is insisted that the defendant was entitled to a peremptory instruction in its behalf, but we are unable to agree with this contention. The law is that a railroad company has a right to operate its trains, and all of its instrumentalities necessary to the conducting of its business as a carrier in the usual and ordinary way; and if animals on the highway become frightened by the movement of trains, including hand cars, in the usual and ordinary way, no liability arises for any injuries that might be produced, and this is the rule prevailing in this State, as will be found from the following cases: Hudson v. L. & N. R. R. Co., 14th Bush, 303; Ohio Valley R. R. Co. v. Young, 19 Ky. Law Rep., 158; L. & N. R. R. Co. v. Smith, 107 Ky. 178; L. & N. R. R. Co. v. Howerton, 115 Ky. 89; Christie v. L. & N. R. R. Co., 124 S. W. (not to be reported) 796.
In the Howerton case the alleged negligence was charged to have been produced by the wrongful operation of a hand car. There was no evidence to show that the operation of the hand car there involved was out of the usual and ordinary manner of operating such cars, and although the plaintiff’s horse became frightened, resulting in her injury, a recovery was denied. In the course of the opinion, the court, quoting from the case of McCerrin v. Ala. and Vicksburg R. R. Co., 72 Miss. 1013, said: ! ‘ The defendant had the right to operate its car in the usual and customary way, and at a safe rate of speed, but had no right to convert it needlessly into a terror-inspiring thing, and for such departure from propriety would undoubtedly be liable in damages for any injury caused by this negligence to one free from fault; but rapidity of movement, noises and sudden appear
In the Christie case it is said: “It is conceded that the rule is that unless those in charge of the train caused it to make unusual and unnecessary noises, and prudently operated it, they not knowing of the presence of the horse, the company is not liable.” From the foregoing authorities it is manifest that the converse of the proposition must be true, i. e., if the servants of the defendant know of the fright of the plaintiff’s animal, they should refrain from doing any unusual and unnecessary thing in the operation of the train or instrument which they have in charge that would be reasonably calculated to increase the fright of such animal, and cause it to do plaintiff injury or harm. If they violate their duty in this respect, and injury and damages follow, the defendant is liable. In this case there is nothing in the evidence to show any negligence on behalf of the defendant in the stopping of its hand car, either at, on or near Conway crossing. Whether it had previously been put upon the ground by the side of the railroad track, as testified to by plaintiff, or not, those in charge of it had the right to either place it back on the track or to turn it around, as they contended was all they did. This operation, whether it be the one or the other, was seen by the plaintiff, and although his horse may have shied because of it, it is manifest from his testimony that the sudden lunge and resultant runaway was not produced because of the location of the car, such location, according to his testimony, having no causal connection with the subsequent fright of his horse and consequent runaway. Indeed he says us much in his testimony when he was asked: Q. “What started your horse lunging?” A. “The hand car.” Q. “The starting up of the hand car?” A. “Yes.” His daughter, who was in the vehicle with him, says as much in her testimony, when she was asked: “Did your father have any difficulty in getting him on by?” A. “No, sir, just spoke to him and he went on by.” Q. “When you were in that position the men started the hand car and scared your horse?” A. “Yes.”
The two defenses made are, first a denial of all of the allegations in the petition, and second that plaintiff sustained his injuries because of his contributory negligence “in his treatment of the horse at the time.” Its testimony on this point was directed to the fact that plaintiff whipped his horse with his lines, causing it to run away. Its contributory negligence plea was both concretely stated and testified to. We are therefore of the opinion that the instruction on contributory negligence should have embodied in it, in concrete form, the
For the errors indicated, the judgment is reversed, with directions to grant a new trial, and for proceedings consistent with this opinion.