C., N.O. & T.P.R. Co. v. McWhorter

CourtKentucky Supreme Court
Writing for the CourtDrury, Commissioner
Citation210 Ky. 108
PartiesCincinnati, New Orleans and Texas Pacific Railway Company v. McWhorter.
Decision Date19 June 1925

Page 108

210 Ky. 108
Cincinnati, New Orleans and Texas Pacific Railway Company
v.
McWhorter.
Court of Appeals of Kentucky.
Decided June 19, 1925.

1. Appeal and Error — Decision on Prior Appeal as to Admissibility and Sufficiency of Evidence to go to Jury is Law of Case. — Decision on prior appeal, holding almost identical testimony, sufficient to go to jury, and that certain testimony is competent, is law of case.

2. Damages — Instruction as to Measure of Damages Recoverable Under Federal Employers' Liability Act Held Erroneous for Failure to Incorporate Principle of Present Values. — In action under federal Employers' Liability Act (U.S. Comp. Stats., sections 8657-8665) for injuries sustained by railroad engineer, instruction permitting plaintiff to recover an amount which would compensate him "for the loss of what he would otherwise have earned. . . and has been deprived of the capacity of earning. . ." held erroneous for failing to incorporate principle of present value of such future earnings.

3. Damages — Measure of Damages Recoverable Under Federal Employers' Act is Furnished by Law as Administered in Federal Courts. — The rule for measuring damages recoverable under federal Employers' Liability Act (U.S. Comp. Stats., sections 8657-8665) is furnished by law administered in federal courts.

4. Jury — Denial of Motion that Jury be Selected in Accordance with State Statute in Action Under Federal Employers' Liability Act Held Error. — In action under federal Employers' Liability Act (U.S. Comp. Stats., sections 8657-8665), denial of motion that jury be selected in manner provided by Ky. Stats., sections 2264, 2265, held error.

5. Trial — Refusal to Discharge Jury Because of Receipt of Evidence Against a Co-Defendant as to Whom Case was Subsequently Dismissed Held Error. — In action under federal Employers' Liability Act (U.S. Comp. Stats., sections 8657-8665) against railroad and its employee, a tower man operating a semaphore, for injuries sustained by engineer who jumped from runaway train because semaphore was turned against train, where plaintiff, shortly after making proof of statements made by individual defendant, which were very damaging to railroad and specifically limited by court to case against individual defendant, dismissed as to such defendant, and immediately called him as a witness, thus precluding a denial of statements previously established, held harmful effects of the statements made were not cured by additional admonition

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of court not to consider, and it was error to refuse to discharge jury.

Appeal from Boyle Circuit Court.

GALVIN & TRACY, EDW. COLSTON, CHAS. H. RODES and NELSON D. RODES for appellant.

J.W. HARLAN, HENRY JACKSON, GEO. E. STONE and JOHN D. CARROLL for appellee.

OPINION OF THE COURT BY DRURY, COMMISSIONER.


Reversing.

The appellee recovered a judgment against appellant for $25,000.00, which it is asking us to reverse. This is the second appeal of this case. The opinion on the former appeal is in 203 Ky. 252, 262 S.W. 253, and a reference to it will give the facts out of which this litigation arose better than we can give them now, so we shall at once begin the consideration of those actions of the trial court which appellant contends are erroneous.

As the evidence on this trial was almost identically the same as on the former trial, the defendant's motion for a peremptory instruction to find for it was properly overruled. The defendant complains of certain evidence as incompetent, but that same evidence was heard before, and the opinion in the former case is now the law of this case.

The action of the trial court in refusing instructions "A," "B," "B1," "C," "D," "E," "F," "G," "H," "I," "K" and "L" offered by the defendant was correct, as such offered instructions would not have submitted to the jury the question this court said should have been submitted.

Instructions 1, 2, 4 and 5 offered by the plaintiff and given over defendant's objection, and instruction "M" offered by defendant and given by the court, submitted to the jury in apt and unmistakable language the question of defendant's responsibility for McWhorter's injuries; but we cannot approve instruction 3, given as the measure of damages. It is:

"If you find for the plaintiff you will find for him such a reasonable sum as will compensate him for his pain and suffering, if any, up to the 7th day of February, 1922, the date of the filing of the petition herein, and...

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