| Ky. Ct. App. | Oct 17, 1895
.(delivered’ the opinion of the court.
The app'dlaii-t' sued the appellee, receiver of the Cincinnati, New Orleans & Texas Pacific Railroad, alleging that the a genii and employes of the road carelessly and negligently ran its cars over and killed two of the appellant’s horses, ,bf the value of $100.
The 4ppellee answered and admitted the killing, but denied that it was done “through either the carelessness or negli/gence of defendant, his agents or servants, and to the danj/age of the plaintiff in the sum of one hundred dollars, or in any other sum.”
o demurrer was filed to this answer, and upon the issues supposed to be formed by it a trial was had which resulted in a verdict for the defendant. Thereupon the plaintiff moved for a judgment in his favor notwithstanding the ver-
The overruling of this motion forms the chief ground of the plaintiff’s complaint on this appeal, and we shall consider it presently. He also complains that after giving substántially the law of the case to the jury, the court added : “There is no proof offered in this case by the plaintiff to rebut the statement of defendant’s witnesses as to how this killing occurred.”
It is insisted by the appellant that this was equivalent to a peremptory instruction to And for the defendant, and we are inclined to think the same way. We are also convinced that such áñ instruction might properly have been given in this case. The killing was admitted by the defendant, and thereupon the presumption of negligence arose, but that was fully rebutted by the testimony introduced by the defendant, consisting not only of 'the statements of the engineer and fireman on the train, but also of the evidence of witnesses other than those in charge of the train.
The plaintiff introduced no proof as. to the killing, and the court only stated the truth when saying that thte plaintiff had not offered any testimony to rebut the proof of the defendant. Upon the evidence, therefore, the verdict could not have been otherwise.
The other question is of a somewhat more serious nature. The answer affords a clear instance of bad pleading, ..StVictly construed it admits that the killing was done negligently or carelessly, but not “to the damage of the plaintiff.” \A. demurrer to it must have been sustained, because no inferences can be indulged in to its advantage. But after verdict a different rule prevails.
As said in Daniel v. Holland, 4 J. J. M., 18, “the sensible and practical rule is that a declaration will be good after veú-
In Wilson v. Hunt’s adm'r, 6 B. M., 379, it was said: “When the verdict can be fairly considered as establishing between the parties the very fact which should have been, is not precisely averred in the declaration, and especial-when it clearly appears that the particular fact was understood by the parties to be the point in issue to be decided the jury, it would be unnecessary for the ends of justice,, and would be more than useless, to remand the case that it should again be presented for the consideration of the jury.”
The issue tried in this case was whether or not the was done negligently and carelessly. The killing was admitted, as was also the value of the stock, it was conceded that it belonged to the plaintiff, and the only issue left was the one submitted to the jury by the court, and that was touching the alleged negligence of the agents and employes of the defendant. The verdict settled that issue, and that alone between the parties, and must be regarded as curing the defective allegations of the answer.
Judgment affirmed.