9 S.W.2d 993 | Ky. Ct. App. | 1928
Reversing.
A.C. Terrell, who was plaintiff in the lower court, appeals from a judgment in favor of the defendant, Southern Railway Company in Kentucky. The action was to recover damages for personal injury, and at the conclusion of the plaintiff's evidence a motion by the defendant for a directed verdict was denied. The motion was made again, however, at the close of all the evidence, and sustained by the court. The sole question presented is whether or not that ruling was right. It depends upon an appreciation of the evidence and is governed by familiar principles. It is our duty to take that view of the evidence most favorable to plaintiff, and if the facts proven, and the inferences reasonably resulting therefrom, tend to sustain the cause of action asserted, the case should be submitted to the jury. Leonard v. Enterprise Realty Co.,
The evidence for the defendant may not be considered, as the record stands, unless it discloses facts that help out the plaintiff's case. Nelson v. Black Diamond Min. Co.,
The plaintiff testified that he was plowing in a field adjacent to the railway track. The mule with which he was working had not been fractious, but, on the occasion in question, became frightened at the train's first whistle and made several lunges forward. As plaintiff was about *647 to regain control of the animal, the whistle was sounded again, which increased the mule's fright and caused it to run away, seriously injuring the appellant. Plaintiff further testified that between the first and second whistles, at a time when his predicament and peril were plain, he saw the two men on the engine looking at him and laughing at his discomfiture. Other witnesses testified to facts tending to corroborate appellant's version of the accident.
The parties agree that it was the duty of the railroad company, if the plaintiff was in peril and they discovered that fact, to exercise ordinary care, with all reasonable means available to them, to prevent injury to him. Millers Creek R. R. Co. v. Blevins,
The evidence brings the case clearly within the rules announced by this court in the cases we have just cited. It was for the jury to determine from the evidence whether the trainmen discovered the peril of plaintiff, and whether they failed, after such discovery, to exercise ordinary care to prevent injury, and whether such failure was the direct and proximate cause of the misfortune.
Appellee argues that the testimony of appellant was inherently impossible and insufficient to require submission of his case to the jury, relying upon several opinions of this court which define what is meant by a scintilla of evidence, and describe the character of evidence a court is not required to accept as the foundation of a cause of action. Clark v. Young,
The finding of facts from conflicting testimony is the peculiar function of the jury and its particular province, which the courts are not authorized or inclined to invade. It is an ancient and necessary right of the jury under our system of judicial administration to pass upon the credibility of witnesses and to measure the probative power of testimony in cases of this character. L. N. R. Co. v. Mount, 101 S.W. 1182,
The court should have submitted this case to the jury and erred in directing a verdict for the defendant.
Judgment reversed, with directions to award a new trial in accordance with this opinion.
