203 Ky. 1 | Ky. Ct. App. | 1924
Opinion of the Court bt
Affirming.
Appellant and plaintiff below, Reliance Coal - and Coke Company, sought by this action to recover of the appellee and defendant below, Louisville and Nashville Railroad Company, damages for the alleged negligent killing of a horse owned by plaintiff and which it valued in its petition at $500.00. The negligence charged in the petition was in the alternative in that it was averred that defendant’s agents and servants operating the train wantonly, carelessly and negligently ran and chased the horse when it was in plain view and but a short distance ahead of the engine without reducing the speed or taking other precautions to prevent injuring him and thereby caused him to fall into a ditch resulting in his death, or that they ran the engine against, over and on the horse thereby producing- his death; but there was no averment that one of the allegations was true but which one the plaintiff did not know. A demurrer was filed to the petition, but it was not pressed and the court did not pass on it, and if we should concede (a question not now decided) that the filing of the demurrer was the proper practice to test the incorrect pleading arising from the omitted ibut required allegation, it was waived by defendant not having the court to act on the demurrer, under a well known rule of practice frequently announced and followed by this court. The answer was a denial, and at the close of the evidence the court sustained defendant’s motion for a peremptory instruction in its favor, resulting-in -a verdict for it, followed by a judgment dismissing the petition, from which plaintiff prosecutes this appeal.
For a reversal it is first argued that, under the provisions of section 809 of our statutes, a prima facie presumption -of negligence on the part of the defendant arises when plaintiff proves by his testimony that the death or injury to the stock was brought about by the acts of defendant’s agents and servants without regard to whether there was or not a collision. But, we think the adjudged
Defendant introduced its engineer and acting fireman on that occasion, and they testified, in substance, that they did not see the horse at all until they arrived at a curve but a short distance from the spot where his body was found, and he was then off the track and some seventy-five or hundred yards ahead of the engine when the stock alarm was blown and the steam shut off and the speed 'of the train reduced to some eight or nine miles per hour. The witnesses could not tell whether it was a horse or a mule, and at another point just beyond where he was first seen by them he again appeared some distance ahead at the side of the track and immediately disappeared and they saw him no more. Each of them testified positively that there was no collision with him. We, therefore, have, a case where the animal was proven to have jumped or fallen on the track and was afterwards found with a bruise on his back some three miles distant therefrom with no evidence to show that at any time he was either on the track or near enough thereto to be seen by the operators of the train until a short while before he fell into the ditch, after which he disappeared and so far as the evidence shows he was never on the track or sufficiently near thereto to be struck by the train, nor did those in charge of it see him thereafter, and with no testimony to prove that he was willfully or otherwise run into the ditch by them. We think under such circumstances the trial court, following numerous opinions of this court, could not have done otherwise than to give the peremptory instruction complained of. Illinois Central Railway Co. v. Gholson, 23 Ky. L. R. 2303; Ky. Central Railroad Co. v. Talbot, 78 Ky. 621; McGhee, Receiver, etc. v. Guyn, 98 Ky. 209; Crawford v. Southern Ry. in Ky. 150 Ky. 741, and Louisville and Nashville R. R. Co. v. Hanger, 167 Ky. 493. The facts in the cases of L. & N. R. R. Co. v. Kice, 22 Ky. L. R. 1463; C. & O. Ry. Co. v. Burton, 156 Ky. 736; C. N. O. & T. P. Ry. Co. v. Graves, 165 Ky. 148, and others relied on by appellant, as well as those in the case of Hines v. Kough, 189 Ky. 806, were entirely different from those presented by this record in that there were proven physical circumstances from which the jury could readily conclude that the damage to the stock was produced by a collision with some part of the train, and when that is true the court should submit the case to the jury
But, it is insisted that in as much as the statute raises a presumption of negligence, that issue should be submitted to the jury regardless of the quantity or quality of defendant’s testimony in rebuttal thereof, upon the theory that it is the exclusive function 'of the jury to determine when that presumption is overcome. However, this court has held to the contrary, as is shown in some of the cases, supra, and also in C. & O. Ry. Co. v. Grigsby, 131 Ky. 363; Remley v. I. C. R. R. Co., 151 Ky. 796; Campbell v. Mobile & Ohio Ry. Co., 154 Ky. 582, 46 L. R. A. (N. S.) 881, Ann. Cas. 1915B 472. The same practice is inferentially endorsed in the Graves, Burton and other cases relied on by plaintiff, since it was held therein that the defendant’s testimony was not sufficient to overcome that of plaintiff, which by implication said that if there were no proven physical facts or circumstances to rebut the positive testimony of defendant’s witnesses, a peremptory instruction would have been proper; and in all cases where there were no such circumstantial facts this court has uniformly held that the case should not be submitted to the jury. In this case we do not regard the -fact that the horse got upon the track some distance from where it was afterwards found alone sufficient to authorize a submission of the case to the jury, either upon the theory of a collision, or of a wrongful chasing of the horse as a result of which it was lulled, without some additional fact having a tendency to prove that those in charge of the train saw him and failed to take the proper steps to-prevent injuring him.
But, it is insisted that the new trial should have been granted on the ground of newly discovered evidence, .which was alleged to be the testimony of a Mr. Ould, whose wife was the stenographer who reported and transcribed the evidence in this case. She was the second witness introduced by plaintiff and told about seeing the horse in the ditch, to which reference has been made. In her testimony she testified that her husband was present with her, but notwithstanding that fact he was not offered by plaintiff as a witness. Furthermore, the alleged newly discovered witness is shown to have lived in that community at the time of the accident, as well as at the time of the trial, something near five years thereafter; and
Wherefore, finding no error in the judgment, it is accordingly affirmed.