189 Ky. 493 | Ky. Ct. App. | 1920
Opinion op the Court by
Affirming.
The appellant, Mary Spitzelberger, seeking in this action the recovery of damages against the city of Newport, and the appellee, South Covington and Cincinnati Street Bailway Company, for bodily injuries sustained by her, as alleged, through their joint and concurrent negligence, obtained on the trial of the ease in the court below a verdict and judgment against the city of Newport for $1,079.00, by way of such damages-. The same jury, however, returned a verdict in favor of the appellee, South Covington and Cincinnati Street Bailway Company ; the verdict in behalf of the latter having- been directed by a peremptory instruction given by the trial court, over appellant’s objection, at the conclusion of all the evidence heard on the trial. Appellant filed a motion and grounds for a new trial as to the appellee, South Covington and Cincinnati Street Bailway Company, but the motion was overruled; complaining of which, also of the instruction directing a verdict for appellee and likewise the judgment entered upon the directed verdict,- she has appealed.
Although the city of Newport filed a motion and grounds for a new trial and, following the court’s refusal of same, prayed and was granted an appeal from the judgment entered upon the verdict awarding appellant
It was substantially alleged in the petition that appellant’s injuries were received at 8 o’clock a. m., February 27, 1918, while crossing Monmouth street in the city of Newport and using* ordinary care for her own safety, from a fall caused by stepping into a hole in Monmouth street and catching* her foot under a rail of ap: pellee’s street railway track occupying* that street, which rail projected from three to five inches above the surface of the street where the hole existed; that at the place of the accident, which was about forty feet north of the curbline at the intersection of Monmouth and Ninth streets, appellee and the city of Newport negligently permitted the hole- in question and others to exist, and the railway track rails to project from three to five inches above the surface of the street, thereby constituting an obstruction dangerous to persons using and having the right to use the street, and preventing it from being reasonably safe for use; and, finally, that the existence of these def ects and obstructions in the street, rendering -it dangerous to persons traveling it, was unknown to her and could-not .by-ordinary care have been discovered'by her in time to prevent her injuries, but was known or, by the use of ordinary care, could have been known to the city of Newport and appellee, throug’h their officers and agents, at the time of appellant’s sustaining her injuries, and also, long enough prior thereto, to have enabled them to remove the obstruction and so repair the street as to make- it reasonably safe for travel.
The averments of- the petition were traversed by the separate answers of the defendants, each of which plead- * ed contributory negligence on the part of appellant, which pleas were controverted by reply. ■ . .
Three grounds of alleged error are relied on by appellant for a reversal of the judgment appealed from: First, the giving by the trial court of the peremptory instruction directing* a verdict for appellee; -second, the refusál' of that court to grant appellant a new trial; third, that the judgment is not supported by the pleadings. Besponding to the first contention, it is only necessary to say that it cannot be considered because of the absence from the record of the evidence introduced on the trial in the circuit court. Indeed, the record neither contains a bill of exceptions nor shows that such bill was ever filed in that court.
We find copied in the record the deposition^ of appellant and her son, a physician, purporting to have been taken for use in this case, but as it is not made to appear from the record that they were introduced of read on the trial in the court below, or that they are identified by an . order of that court, they cannot, on this appeal, be considered by us for any purpose. Beyond what has been said of the depositions of appellant and her son, it will not be improper to add that it seems to be conceded by her counsel that they were not used in her behalf, and she and the son orally testified as witnesses on the trial of the case. We frequently have held that depositions appearing in the record on appeal that were not read on the trial in the circuit court, nor identified by an' order of that court, will not be considered by the' Court of Appeals. Shannon v. Stratton & Terstegge, 144 Ky. 26; New York Life Ins. Co. v. Brown’s Admr., 139 Ky. 711.
In the absence of a bill of exceptions containing the evidence, the theories or statements of counsel explanatory of the trial court’s reasons for requiring of the jury a directed verdict will not be accepted by'us. The only conclusions we can reach must be arrived at from the evidence upon which that court acted; and where it is not furnished on the appeal of the case we can no more conjecture that it established culpable negligence on the part of the defendant, than that it proved contributory negligence on the part of the plaintiff, but for which the injuries complained of would not have been received.
Manifestly, the denial is sufficiently specific to controvert and put in issue the fact pleaded in the petition as constituting the alleged negligence of appellee regarding the condition of the railway track and rails complained of. »
As our conclusion that the first and third grounds urged by appellant for a reversal of the judgment appealed from, are wholly without merit is decisive of the appeal, consideration of the second ground, complaining of the circuit court’s refusal of a new trial to the appellant, will be unnecessary. Judgment affirmed.