Chesapeake & O. Ry. Co. v. Meyers

• Decision Date: 03 December 1912
• Parties: CHESAPEAKE & O. RY. CO. v. MEYERS.
• Court: Kentucky Court of Appeals

151 S.W. 19

150 Ky. 841

CHESAPEAKE & O. RY. CO. v. MEYERS.

Court of Appeals of Kentucky.

December 3, 1912

Appeal from Circuit Court, Campbell County.

Action by William C. Meyers against the Chesapeake & Ohio Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Galvin & Galvin, of Cincinnati, Ohio, and William A. Burkamp, of Newport, for appellant.

Ramsey Washington and Howard M. Benton, both of Newport, for appellee.

CLAY C.

The Oneonta and Twelve Mile road is a county road running between Alexandria, the county seat of Campbell county, and Oneonta a station on the Chesapeake & Ohio Railroad, and a landing on the Ohio river. The road is used by a large number of people. Across this road the Chesapeake & Ohio Railway Company maintains two tracks-a main and a spur track. The two tracks are just far enough apart to allow cars to clear each other in passing. Between two of the rails of the spur track, at a point on the road, is an opening about 2 1/2 inches wide. This condition existed at the time of the accident hereinafter referred to, and had existed for several years. Charging a failure of duty on the part of the railroad company in permitting the road and its tracks, at the point where the tracks crossed the road, to become and remain in a dangerous condition, and that, while driving across the track, one of the runners of his sled was caught in the opening between the two rails of the spur track, thereby causing him to be thrown from his sled and injured plaintiff, William C. Meyers, brought this action to recover damages. He asked damages in the sum of $6,300, of which $300 was for medical services incurred and to be incurred, $1,000 for loss of time, and $5,000 for mental and physical suffering and permanent impairment of his power to earn money. The item for loss of time was subsequently amended to read $575. The jury returned a verdict in favor of the plaintiff for $5,700. On motion of plaintiff the sum of $200 for medical services to be incurred in the future was remitted. Judgment was entered in favor of plaintiff for $5,500. Defendant appeals.

The accident took place on March 20, 1911. At the time of the accident plaintiff was returning to his home from Oneonta station. He was driving a sled which was being drawn by a pair of mules. In crossing the spur track one of the runners of the sled caught in the opening between the two rails, and plaintiff was thrown out. His leg was bruised between the knee and the hip. He received a blow over the eye, which injured the supra-orbital nerve, and caused a catarrhal condition of his head. The principal injury was to his hand which became badly swollen and inflamed, and remained in that condition for several months. The tendons of the hand were so affected that plaintiff has practically lost the use of it. This condition is permanent. Plaintiff was confined to his bed two or three months, and could not walk on his leg for five or six months. He suffered intensely from his injuries, and it is very probable that he will continue to suffer for some time to come. The testimony showed that up to the time of the trial he had incurred a physician's bill of $100. There was also evidence that, in order to have an operation performed, it would be necessary to incur an additional physician's bill of $200.

While it was not proper for the court to permit the two physicians who examined plaintiff for the purpose of testifying to state what the reasonable value of their services was, defendant did not object or except to their testimony, and cannot therefore avail itself of the error.

The court did not err in permitting plaintiff to testify that defendant's physician examined his hand. There was no impropriety in permitting him to tell what physicians examined him, and to tell who they were, even if one of them happened to be a physician in the employ of the defendant.

While the remark of plaintiff's counsel when this evidence was objected to, to the effect that the other side was insinuating that they were exaggerating, and they wanted to show that they gave them every opportunity they wanted, was improper in the absence of anything in the record showing that such was the case, we are not inclined to hold that the statement was prejudicial error.

During the progress of the trial, the court permitted two or three witnesses to testify either that the wheels of their vehicles had been caught in the opening in the spur track, or they had seen vehicles of others so caught. It was shown that, when these occurrences took place, conditions were practically the same. In admitting this testimony the court admonished the jury that it could be considered for the sole purpose of throwing light on the question whether or not the crossing was in a dangerous condition or otherwise, and for no other purpose. One of the issues was: "Did defendant permit the roadway where its tracks crossed it and its tracks to be and remain in a dangerous condition?" The fact that, conditions being the same, other vehicles were caught in the opening in the spur track, is certainly a circumstance tending to show the dangerous condition of the track and roadway. With the limitation contained in the admonition of the court, we think the evidence was clearly admissible. Georgetown, etc., v. Cannon, 7 Ky. Law Rep. 379; 29 Cyc. 611.

At the conclusion of the evidence for plaintiff, the defendant moved for a peremptory. After overruling the motion, the court said: "The defendant informs the court that they have no evidence to introduce." To this statement the defendant objected and excepted. Thereupon the court said: "I don't recall just the expression I used, but the stenographer has it that I indicated to you that the defendant had no...