137 Ky. 811 | Ky. Ct. App. | 1910
Opinion of the Court by
— Affirming.
The appellant, G-. Rager, an infant nine years of age, together with his statutory guardian, by this action .sought to recover of appellee in the court below $5,000 damages for an alleged injury to his foot, caused, as charged, by the negligence of the latter, its servants and employes, in leaving a truck so near its track at Bevier that a moving train struck and drove it against appellant’s foot as he was passing, thereby inflicting the injury complained of. Appellee’s answer traversed the averments of the petition, and alleged contributory negligence on the part of appellant, which plea was controverted of record. The trial resulted in a verdict and judgment in favor of appellee, and appellant, having failed to secure a new trial -in the court below, prosecutes this appeal.
According to appellee’s evidence the injury sustained by appellant was slight. The family physician, Dr. Creel, by whom appellant’s foot was examined two days after the accident, testified that the only injury to the foot consisted of a small abrasion of the skin upon or near the instep, accompanied by
Appellant’s account of the manner of his receiveeiving the injury to his foot was that, as he was passing the truck on an errand to a grocery store, a backing freight train struck the truck and pushed it against him, causing one of its wheels to run upon or against his foot. If the ground on either side of appellant’s track in the village of Bevier and at the place and time of the accident was constantly used by the public as a passway, appellant, in common with others, had the right to so use it, and in that event he was not a trespasser at the time he was injured. Furthermore, if the public were thus licensed
It is insisted for appellant that the court erred m admitting the testimony of 0 ’Brien, the section foreman, that appellant had been about the truck on the morning of and before the accident. The testimony of O’Brien on the point in question has already been referred to. It was to the effect that appellant, in company with other boys, had been about the truck all morning; that O’Brien had repeatedly requested the boys, including appellant, to go away from the truck, which they had not done. Counsel for appellant objected to this testimony of O’Brien upon the ground that Ms right to recover was not affected by the fact that he had been playing with or about the truck previous to the accident. The court overruled the objection, but in doing so made this statement to, or in the hearing of, the jury: “You will have to confine it (meaning the interrogation) to this boy. It is competent to show that the boy was there
Appellant’s counsel further insists that the court erred in not granting appellant a new trial upon the affidavit of the juror Mitchell. Mitchell was a member of the jury that tried the case. The affidavit was made and filed after the return of the verdict. It in substance states that some of the jurymen in the case during the trial or before its conclusion saw-appellant walk without limping, and that this fact was discussed by the jury when -in the jury room and before the return of the verdict. It is needless to say that this court has repeatedly held that a verdict cannot' be explained or impeached by the affidavits or other sworn statements of jurors. Allard v. Smith, 2 Metc. 297; Alexander v. Humber, 86 Ky. 565, 6 S. W. 453, 9 Ky. Law Rep. 734; Eversole v. White, 112 Ky. 193, 65 S. W. 442, 23 Ky. Law Rep. 1435; Jones’ Adm’r v. L. & N. R. R. Co., 108 S. W. 865, 32 Ky. Law Rep. 1371. The rule also applies in
Appellant’s counsel seem to have entered during the trial a formal exception to the instructions, and they are also complained of in the motion and grounds for a new trial, but this brief presents no criticism of them. We have, however, carefully examined them, and find that they are substantially correct.
Finding the record free from material error, the judgment is affirmed.