Chesapeake & O. Ry. Co. v. Davis

• Decision Date: 23 October 1900
• Citation: 60 S.W. 14,119 Ky. 641
• Parties: CHESAPEAKE & O. RY. CO. et al. v. DAVIS. [1]
• Court: Kentucky Court of Appeals

60 S.W. 14

119 Ky. 641

CHESAPEAKE & O. RY. CO. et al. v. DAVIS. ^[1]

Court of Appeals of Kentucky.

October 23, 1900

"Not to be officially reported."

Modified opinion. For former report, see 58 S.W. 698.

HOBSON J.

Appellee a little boy 9 years old, by his mother and guardian filed this suit to recover of appellants for personal injuries sustained by him. The facts of the case, as shown by the testimony for appellee, which the jury by their verdict found, in effect, to be true, are as follows: Appellee was sent by his mother to get for her two loaves of bread and a can of tomatoes. He bought these, and on his way home had to cross the railroad track. While waiting at the crossing, or near it, for a train to pass, he was standing about 2 1/2 or 3 feet from the train, looking in the direction in which it was going. He thus had his back to the rear of the train, and was caught by a crooked piece of iron projecting from one of the cars by reason of the door being improperly secured, and carried along by the train, being unable for a time to loose the iron from his neck. When he at length got it loose he fell to the ground, and one of his feet, getting thus under the wheels, was run over, rendering amputation necessary. Appellants contended that appellee jumped on the car to get a ride, and got his foot under the wheel in jumping off. The court, by apt instructions, submitted to the jury whether the injury was caused in this way, and whether appellee was guilty of contributory neglect in standing near the moving train, with his back towards the cars that were approaching and passing him; and, while the evidence would have sustained a verdict for the appellants, we cannot say the verdict for appellee is so against the evidence as to warrant us in setting it aside. The constitution guaranties a jury trial in this class of cases. The reason of the rule is that the common judgment of 12 men of the average of the community with their varied experiences, is more to be trusted, on such questions of fact, than the conclusion of a single judge however learned. The jury hear and see the witnesses, and have much better opportunity to detect falsehood than we can have from a transcript of the evidence given before them, and it is only where their verdict is palpably against the evidence that this court will disturb it. The evidence of appellee has not only the inherent odor of sincerity, but is supported by two other little boys, also eyewitnesses, and by the bruise on his neck, seen soon after he fell, and not otherwise accounted for, as well as by the loaves of bread and the can of tomatoes dropped along the track.

The court properly refused the motion of either appellant for a peremptory instruction. The track belonged to one, and the engine to the other; and the evidence, on the whole warranted the conclusion that the train was operated by them jointly. To run a train through a populous city, with an iron swinging in and out, as this was shown to be, was necessarily to endanger those on the highway along which it passed, and was evidence from which the jury might properly infer negligence. Graney v. Railway Co. (Mo. Sup.) 41 S.W. 246, 38 L. R. A. 633; Shear. & R. Neg. §§ 457, 458, and notes.

The verdict is large ($10,000), but not larger than some which have been sustained by this court for like injuries. Railroad Co. v. Moore, 83 Ky. 675; Same v. Mitchell, 87 Ky. 327, 8 S.W. 706.

There was no substantial error in the admission of evidence. The only instruction necessary to be noticed relates to the measure of damages. The court allowed the jury to allow a fair compensation for the pain and suffering endured by appellee, and for the impairment of his ability to earn money by reason of the injury. Appellants insist that this should have been limited to his impairment to earn money after his arrival at 21 years of age, on the ground that his parents were entitled to his services until his majority, and entitled to recover for any loss of his capacity to earn money. His mother was a widow. Her right to his services until he was 21 she could release. She could assign to him any cause of action she had by reason of his injury, or she might release her right to his services during minority or emancipate him. This she might do by parol, and it might be implied from circumstances, and thus the entire cause of action for the injury might have been vested in him. The...