121 Ky. 645 | Ky. Ct. App. | 1905
Opinion by
Affirming.
The appellee, Wilson Helm, -while serving the appellant, Lonisville & Nashville Railroad Company, as a section hand, was injured in a collision between a hand car upon which, he and some of his fellow serve i were riding, and one of appellant’s freight trains. The injuries sustained by appellee were a fracture of one leg and other wounds upon different parts of the body, the fracture of the leg resulting in its amputation. For the injuries thus sustained he instituted this action against appellant in the Boyle Circuit Court, laying his damages- at $10,000, and charging in
At the appearance term of the Boyle Circuit Court appellant filed a special demurrer to the jurisdiction of the court, entered a motion to quash the summons, and also filed a plea in abatement, wherein it was alleged that the Boyle Circuit Court had not jurisdiction of the case, because appellee was injured in Harrison county, and that he was not, when injured, or when the action was instituted, or at any time theretofore, a resident of Boyle county, but is and was a resident of Lincoln county, and, further, that appellant’s station agent at Junction City, Boyle county, on whom the summons issued in the case was served, was not the officer or agent of appellant required by law to .be served with summons. Appellee filed a reply to the plea in abatement, traversing its averments, and later filed an amended petition, in which it was alleged that he was a citizen and resident of Boyle county at the time of the action. Appellant filed answer to the amended petition, containing a. denial of the allegations thereof, and averring that appellee was only a pretended resident of Boyle county at the time' of the institution of the action, and that his pretense of being a resident of that county was resorted to for the fraudulent purpose of giving the circuit court of that county jurisdiction of the case. The affirmative matter of the answer to the amended petition was controverted by reply.
Without waiving its objection to jurisdiction, appellant then filed answer, interposing the following'
Appellee by reply denied all the affirmative matter of the answer, and averred in substance that the alleged compromise and settlement of his claim for damages against appellant was fraudulently brought about and procured by appellant, through its agents and servants, at a time when he was sick from his injuries and mentally unable to understand the transaction, or to contract or be contracted with; that appellant’s agents, intending to overreach and defraud him, and knowing that he could not read or write, and
There were other pleadings, responsive and by way of amendmént, filed by both appellant and appellee; but we deem it unnecessary to call attention to them, as what we have said about those mentioned will sufficiently indicate the issues involved. After the issues were formed, appellant entered a motion to the effect that the lower court hear proof and determine whether or not it had jurisdiction of the case before undertaking a trial on the merits, and also entered a motion to dismiss the action for the want of jurisdiction; but both motions were overruled by the court, as were the demurrer to jurisdiction and the motion to quash summons, to all of which appellant excepted at the time. On the trial the jury returned a verdict in behalf of appellee for $5,456, with a credit of $456, leaving a net sum of $5,000; and for this amount the court entered a judgment in appellee’s favor. Appellant, after the return of the verdict and before judgment was entered thereon, moved the court for a judg
The evidence as to the manner in which appellee received his injuries manifests the following facts: That appellee 'and other servants of appellant, in obedience to. the orders of its section boss, got upon two of its hand cars, to be carried, as was the custom, to their place of work, which was a point north of Boyd Station. There were twenty of the section hands, and two hand cars were required to carry all of them to their work. In proceeding to the place of work one of the hand cars followed immediately behind the other. The section boss was on the front and appellee on the rear car, engaged in working one of the levers by which it was propelled; his back being toward the front car. After going a short distance and reaching the middle of a deep cut, a freight train coming around a curve from the opposite direction to that in which the hand cars were going, ran into and collided with the hand cars. The section hands, including appellee, jumped to the ground in trying to escape; but as the latter reached the ground one of the hand cars was knocked by the freight train against him with such force as to break his right leg and otherwise injure him. As, according to the evidence, the section boss took 'the hands out on the time of the freight train with which they collided, knowing with reasonable certainty that they would be met by the train, the jury were authorized to find that he was guilty of gross negligence which caused appellee’s injuries,. It is true there was some testimony to the effect that he ordered the men to jump for their lives when he saw 'the freight train; but, as the train could not be seen until it was about to strike the hand cars,
Appellant’s main contention is that the lower court should have sustained its demurrer to jurisdiction or its plea in abatement. The question of jurisdiction depended upon whether appellee was a bona fide resident of Boyle county at the time of the institution of of the action. The testimony of appellant conduced to prove that he was not. Upon the other hand, appellee testified positively that he was, in which he was in some sort corroborated by other witnesses. So that, while there was a sharp conflict in the evidence on this point, the question was one of fact, which was determined in appellee’s favor, and, being supported by some evidence, we can not say that the finding was unauthorized. Nor do we tbink the leaving of this issue of fact to the jury was prejudicial error. While a plea to jurisdiction is most generally determined by the court, where it depends, as in this, case, upon a question of residence, we think it may be left by the court to the decision of a jury, under proper instructions, like any other issue of fact. Therefore the court did not err in overruling the demurrer to jurisdiction, or in refusing to sustain the plea in abatement.
It is also insisted for appellant that the tender made by appellee before suit was invalid, first, because
This being determined, the next inquiry is, was the-sum tendered sufficient in amount. The amount paid appellee by appellant in the alleged compromise and .settlement of his claim of damages was $400, and this; was the amount he tendered to appellant’s agent before the institution of the action. It is, however, claimed by appellant that, in order to make the tender-a valid one, appellee should have included in the:
Obviously there was no reason why appellee should have tendered appellant the amount expended by it on his account during his stay at the hospital, for he was taken there and provided for because he was a servant of appellant and was injured while in its service. He did not ask of appellant the board, nursing; and care, furnished him, was not consulted about it, and was powerless to prevent it. Unless we assume that appellant’s only purpose in thus caring for him was to procure the compromise which it claims followed his removal to the hospital, we must conclude that what it did for appellee was done without expectation of reward; and, without regard to the alleged
Appellee’s removal to the Covington Hospital occurred April' 24, 1902, the same day his injuries were received. About two weeks later his leg was amputated, and the writing evidencing the alleged compromise and settlement of his claim for damages bears date June 3,1902. The writing is in words and figures as follows:
“Louisville and Nashville Railroad Co., to William Hellem (Col.) Address: Covington, Kentucky. 190-June 3, 1902. Received of the Louisville & Nashville Railroad Company four hundred dollars ($400) in full compromise, settlement and adjustment of all claims and demands of every character whatsoever which I have against the said company, its officers, agents and employes, on account of the injury to my person and loss and damage to property in collision between a freight train of said company and a hand car near Boyd Station, Harrison county, Kentucky, on the 24th day of April, 1902, and every other account whatsoever. his
“WILLIAM x HELLEM.’’
mark
“Witnesses:
“HARRY F. DONNELLY,
“JOHN J. FISHER,
“J. J. DONAHUE.’’
“Correct. Approved: J. J. Donahue. (L. A.)
“Approve for adjustment: Chas. Hayden, Comptroller.
“Audited: H. W. Bruce, Gfeneral Counsel. B, D. Warfield, District Attorney, Registered Law Dept., Louisville. R. E. Lawell', Auditor of Disbursements.
“Received form hundred 00-100 dollars.
his
“ WILLIAM x HELLEM. Date: 190 — .
mark
“Witnesses:
“HARRY F. DONNELLY,
“JOHN J. FISHER,
“J. J. DONAHUE.”
It will be observed that the writing supra does not express a part of the consideration alleged in appellant’s answer as a feature of the contract between the parties, viz., that, in addition to the $400 paid appellee, appellant was to pay his board, surgical bills, and for nursing furnished him during his stay in the hospital, and to furnish him, upon his discharge from the hospital, transportation from Covington to Stanford. Nor does the answer allege a mistake in the writing whereby this important feature of the alleged contract was omitted therefrom. This being true, the lower court should not have allowed appellant to introduce evidence as to the value to appellee, or cost to it, of the board, nursing, surgical bills, transportation, etc., set forth in its answer. Nor should the jury have been instructed to consider, on any aspect of the case, these items as entering into the contract between the parties, if there was a contract made between them. But, as these errors of the court were beneficial to appellant and prejudicial to appellee, they will not authorize a reversal.
The jury, as shown by their verdict, accepted appellee’s testimony, rather than that of appellant’s witnesses, and in doing so, no doubt, took into consideration the circumstances surrounding the parties and the transactions between them. The one party being an ignorant and probably unsuspecting negro, confined to his bed with a wounded leg, having neither "relation, friend, or counsel near to advise him of his rights or caution him against imposition; the other represented by -a shrewd and zealous agent, ready to do what he could to advance the interests of his employer. This inequality of the parties, the gross inadequacy of the sum paid in settlement, the helplessness of appellee, his inability to resist importunity, and the persistency and haste with which appellant’s agent forced the settlement upon him, were all circumstances that doubtless had great weight with the jury. At any rate, they were the triers of the issues of fact submitted to them by the court’s instructions, and the fact that their verdict may not be in accord with the testimony of a majority of the witnesses furnished to the trial court no reason for setting it aside. It can not properly be claimed that mere numerical superiority of witnesses on one side constitutes preponderance of proof. Nor can the verdict be set aside as not being sustained by the evidence.
It is argued for appellant that appellee, by expending some of the money received by him in the alleged
We have examined the instructions given by the trial judge, and with the exception of one or two im
The verdict is not excessive. Five, thousand dollars is not unreasonable compensation for the loss of a leg, to say nothing of the physical and mental suffering which must have attended its fracture and the amputation that followed.
Judgment affirmed.
Petition for rehearing by appellant overruled.