Johnson v. L. &. N. R. Co.

• Decision Date: 01 February 1918
• Citation: 179 Ky. 81
• Court: Kentucky Court of Appeals
• Parties: Johnson v. Louisville & Nashville Railroad Company.

179 Ky. 81

Johnson v. Louisville & Nashville Railroad Company.

Court of Appeals of Kentucky.

Decided February 1, 1918.

Appeal from Franklin Circuit Court.

O'REAR & WILLIAMS and L. FRANK WITHERS for appellant.

T. L. EDELEN and SHELBY, NORTHCUTT & SHELBY for appellee.

OPINION OF THE COURT BY JUDGE SAMPSON — Reversing.

This is the second appeal of this case. The opinion on the first appeal is found in 168 Kentucky 351.

The case has been tried in the circuit court three times. On the first trial the jury awarded plaintiff damages in the sum of fifteen thousand ($15,000) dollars; this verdict and judgment was set aside and a new trial granted by the lower court. On the second trial plaintiff recovered a verdict of six thousand ($6,000) dollars, and the motion and grounds for new trial being overruled, it was appealed to this court and reversed with directions to peremptorily instruct the jury to find for the defendant upon another trial if the evidence produced by plaintiff was substantially the same as upon the second trial.

Upon the third trial in the circuit court the jury was peremptorily instructed to find and return a verdict for the defendant railroad company, upon which verdict judgment was entered, and from which Johnson appeals, insisting that upon the third trial he introduced a new witness who gave evidence not only supplementing that given upon the other trials, but, in addition, testifying in substance that the train gave an unusual jerk in attempting to start at the time plaintiff was injured. Except for this new witness, Homer Wise, it is admitted the evidence is substantially the same as upon the second trial.

The rule of this court that the opinion on the first appeal on all points discussed therein, is the law of the case on all subsequent trials is too well established and too generally recognized to need re-statement or argument here. This rule is stated and recognized in the following cases: Kirchdorf v. Ward, 167 Ky. 298; Adams Express Co. v. Hoeing, 88 Ky. 373; Petit v. Marble, 18 R. 167; Louisville & Nashville R. R. Co. v. Queen City Coal Co., 99 Ky. 217; Schmetzer, by, etc., v. Louisville & Nashville R. R. Co., 19 Rep. 1713; Iser v. Davis, 18 Rep. 510; Brown, Assignee v. Marion National Bank, 18 Rep. 186; Hopkins v. Adams Roth Grocery Co., 105 Ky. 357; Martin v. Spurlock, 122 S. W. 125; Brooks v. City of Maysville, 151 Ky. 707; Mahoney v. Mentz's Assignee, 153 Ky. 484; Doherty v. First Nat. Bank, 161 Ky. 202.

In the first opinion the facts are found as follows:

"The proof shows that, notwithstanding the crippled condition of the plaintiff, he was perfectly able to walk about and go wheresoever he pleased. He resided with his daughter about four miles from Winchester and in going to town frequently walked part of the way and sometimes all the way, and on the day he made this trip he started from his home with a grip, or suit case, and after walking perhaps one-half of the way he rode into town in a vehicle with a traveler on the turnpike. He deposited his grip in a saloon where he drank a milk punch, and after leaving the saloon and visiting some places in town, he returned and drank another milk punch, and later on after engaging in other travels about the city and about 11:00 o'clock, he returned to the saloon and drank a third milk punch. At this time he purchased two pints of whiskey and put them in his grip, or suit case. He then went to the home of one Mr. Dougherty, where he had his dinner, and about 3:30 o'clock he left this place and went to the saloon and took out one of the pints of whisky and put it in his pocket and then went to the depot and purchased his ticket and subsequently boarded the train. He took his seat on the left hand side of the rear end of the smoking car, the next car following being the day coach, or ladies' car. He put his grip on the seat immediately in front of the one he was occupying, and there was sitting besides him a young man whose name does not seem to be known to any one testifying in the case, and who was not introduced as a witness. Other passengers, however, and indeed it is admitted by plaintiff, say that en route plaintiff offered to this fellow passenger a drink and at the same time took one himself. Plaintiff claims that his companion passenger accepted the drink, while other passengers did not see this, but testified that the plaintiff's offer was refused. However this may be, within a comparatively short while a controversy arose between the plaintiff and this passenger and the former became so loud and boisterous in his talk that it attracted the attention of other passengers in the car, the language used by him, as testified to by the witnesses, being by no means the most elegant. As a consequence of this he changed his place in the car, and by the time he got to Frankfort, he was unable to locate his grip, or suit case, and according to the proof made no effort either to find it or to alight from the train until after all of the passengers had gotten off and all those desiring to take passage had gotten on and many, if not all of them, had secured seats in the respective coaches. About this time some one suggested to him that the train had arrived at Frankfort, whereupon he began to search for his grip, and after finding it and after he got within three or four feet of the smoking car door going out, the train made the usual start without any jerk, unusual or otherwise, and by the time plaintiff got out upon the platform the train was cleverly started, and he, over the protest of the brakeman, and that of a Mr. Wilson, who is a citizen of Frankfort and whose testimony is both intelligent and convincing, undertook to jump off the car, which was then moving at a speed of from two to three miles per hour and in so doing fell and thereby sustained the injuries for which he sues.

"There is no dispute but that, at the usual place the station of Frankfort was announced in the usual way, and no testimony showing that the train did not stop upon this occasion the usual time, which was about three minutes. There is absolutely no proof that any unusual number of passengers crowded onto the car and there was such an utter failure to produce evidence of any jerking start of the train that the plaintiff himself abandons this theory by failing to offer any instruction upon it."

Upon the last trial plaintiff, Johnson, testified and called a number of witnesses, including Homer Wise, a newsboy, who testified for the first time. The evidence of Homer Wise is largely cumulative, since it relates to subjects fairly covered by witnesses upon the first and second trial, but in addition he gives an account of the jerking of the train, and it is, therefore, contended that his evidence entitles the plaintiff to go to the jury upon the question of whether the train started with a sudden jerk, causing the injury of plaintiff. His evidence upon this subject is as follows:

"Q. What sort of a start did this train make? A. An unusual quick start. Q. What did you say about what kind of a start they made? A. A quick start. Q. What was the effect of that start on the train itself? (Defendant objected; sustained). Q. What did the train do and what did you hear, if anything? A. It made a...