137 Ky. 719 | Ky. Ct. App. | 1910
Lead Opinion
Opinion of the Court by
— Reversing.
Appellee, Rossa Wellington, instituted this action against the Louisville Railway Company, to recover damages for personal injuries. The jury returned a •verdict in her favor for the sum of $7,125. From the judgment based thereon, the Louisville Railway Company appeals.
The following is a brief statement of the circumstances of the injury: White City is a place of amusement, located upon the banks of the Ohio river. During the summer season it is largely patronized by the citizens of Louisville generally. During the last week of the season it is patronized by the colored people of that city. On the night of September 8,
At the outset, however, it is insisted by appellee that this court has no right to consider the bill of exceptions because it was not filed within 60 days from the date of the judgment overruling the motion and grounds for a new trial. We deem it unneces
It is first insisted by appellant that the court erred in giving instruction No. 1, which is as follows: “(1) If the jury believe from the evidence that the conduct of the negroes, by whom plaintiff claims to have been insulted and assaulted on the occasion in the evidence referred to, was such on defendant’s car, and prior to the happening of the alleged assault, as would induce a reasonably vigilant and prudent conductor to have anticipated that such assault might be made, then it became the duty of such defendant’s conductor, in the exercise of the utmost vigilance, to use all reasonable means to protect the plaintiff from indignity and assault from said negroes, and if you shall believe from the evidence that the defendant’s conductor under such circumstances failed to use all reasonable means to prevent such indignity to or-assault upon the plaintiff, and that by reason of such failure on the part of defendant’s conductor the plaintiff sustained insult, assault, or injury from said negroes on the occasion in the evidence referred to, the law is for the plaintiff, and the jury should so find.” The error relied upon is the use of the word “might” instead of the word “would.” The rule applicable to such cases is
From the foregoing it will be seen that, while appellee claimed not to be able to do her work as well as she formerly did, it is not shown that she was even confined to her bed, or confined to her home for any length of time because of the injury. While there is some doubt as to whether or not her injury produced the hemorrhages of which she complains, yet, accepting this contention as true, and that she occasionally suffers from hemorrhages when it is not her period, we are constrained to the opinion that a verdict of .$7,125 under such circumstances is so excessive as to strike the mind that it was due to prejudice or passion on the part of the jury. As it was shown that she was treated in a rough and humiliating manner by a lot of drunken and disorderly negroes, this fact was sufficient to, and doubtless did, arouse the passion of the jury, and thus cause them to award her such a large verdict. That being true, we conclude that appellant is entitled to a new trial.
Judgment reversed, and cause remanded for proceedings consistent with this opinion.
Rehearing
Opinion op the Court by
Rehearing granted. Order of reversal vacated and judgment affirmed.
Upon reconsideration, we conclude that we were in error in holding that appellee’s failure to object
The next question to be determined is: Was the bill of exceptions filed in time1? The motion for a new trial was overruled on March 13, 1909, and appellant given 60 days time within which to file the bill of exceptions. The bill was filed on May 12,
In the case before us the computation is to be made, not from the day itself, but from, the act done. The act done was the overruling of the motion for a new trial. The bill of exceptions could have been filed upon that day; therefore, that day should be counted. Counting March 13th, the day on which the motion for a new trial was overruled, the bill of exceptions was not filed until the sixty-first day; therefore, it was not filed in time. Not having been filed in time, it cannot be considered by this court. That being true, the only question before us is whether or not the pleadings support the judgment. Of this there can be no question.
For the reasons given, a rehearing is granted, the order of reversal set aside, and the judgment affirmed.