204 Ky. 66 | Ky. Ct. App. | 1924
Opinion of ti-ie Court by
Reversing.
The appellant appeals from a judgment of $2,233.45 recovered against it. In April, 1918, the appellees made with appellant a written contract to build for it a sidetrack leading from the C. & 0- Railway up a branch and past the mine of the appellant, and when the work was
The evidence is by no means satisfactory to the court' and the judgment appears to us to far exceed the value of any extra work that may have been done, but we are unable to say that the motion of appellant for peremptory instruction to find for it, made at the conclusion of the appellees’ evidence and renewed at the conclusion of all the evidence, should have been given. The weight of the evidence seems to favor the appellant, but still, there was evidence to' support the claim made by appellees, hence the court did not err in refusing to give a peremptory instruction to find for appellant. The court did err, however, in the instructions that it did give. The parties admitted making the written contract, but the court asked the jury in its instructions to find whether or not they made such a contract and to determine whether or not the work sued for was included in the contract. The court should have told"the jury that the parties had made a contract and what the contract required the appellees to do, and submitted simply whether the appellant authorized or required the appellees to do any work in addition to the work included in the contract, defining, of course, what was included, and submitting to the jury the value of such extra work, if any.
The judgment is therefore reversed, and the cause remanded for new trial consistent with this opinion.