Chesapeake & O. Ry. Co. v. Davis
| Decision Date | 23 October 1900 |
| Citation | 58 S.W. 698 |
| Parties | CHESAPEAKE & O. RY. CO. et al. v. DAVIS. [1] |
| Court | Kentucky Court of Appeals |
Appeal from circuit court, Kenton county.
"Not to be officially reported."
Action by Raymond Davis against the Chesapeake & Ohio Railway Company and another to recover damages for personal injuries. Judgment for plaintiff, and defendants appeal. Affirmed.
Simrall & Galvin, for appellants.
Harvey Myers and W. S. Pryor, for appellee.
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, and which the jury, by their verdict in effect found 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 conclusions 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 when 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 refused properly the motion of either appellant for a peremptory...
To continue reading
Request your trial
-
City of Pineville v. Lawson
...after he became 21. We have had this question before us several times. The leading case on the question is that of C. & O.R. Co. v. Davis, 58 S.W. 698, 22 Ky. Law Rep. 748. It was insisted there that a similar error had been made. That suit had been brought by the mother as guardian of her ......
-
City of Pineville v. Lawson
...... Pineville. Judgment for plaintiff, and defendant appeals. Affirmed. [9 S.W.2d 518] . . Davis &. Harrison, of Pineville, for appellant. . . J. S. Golden and B. B. Golden, both of Pineville, for appellee. . . ......
-
McGraw v. Ayers
...v. Haley, 137 Ky. 305, 125 S.W. 720, a verdict of $9,000 in favor of a man 57 years old for the loss of an arm; and C. & O. Ry. Co. v. Davis, 58 S.W. 698, 22 Ky. Law Rep. 748, where a boy nine years old recovered $10,000 for the loss of a In Norfolk & Western Railway Co. v. Thompson, 161 Ky......
-
Zongker v. People's Union Mercantile Company
...services because she brought this suit as his next friend and testified in the case. McCarthy v. Railway, 148 Mass. 550; Railway Company v. Davis, 58 S.W. 698, S.W. 114; Scott v. White, 71 Ill. 287; Angler v. Badgley, 29 Ill.App. 336; Ables v. Bransfield, 19 Kas. 16; Baker v. Railway, 91 Mi......