Chesapeake & O. Ry. Co. v. Perkins

• Court: Kentucky Court of Appeals
• Writing for the Court: SETTLE, J.
• Citation: Chesapeake & O. Ry. Co. v. Perkins, 105 S.W. 148, 127 Ky. 110 (Ky. Ct. App. 1907)
• Decision Date: 13 November 1907
• Parties: CHESAPEAKE & O. RY. CO. v. PERKINS.

105 S.W. 148

127 Ky. 110

CHESAPEAKE & O. RY. CO. v. PERKINS.

Court of Appeals of Kentucky.

November 13, 1907

Appeal from Circuit Court, Lawrence County.

"To be officially reported."

Gilson Perkins having brought an action against the Chesapeake &amp Ohio Railway Company for personal injuries and died after reversal on appeal from the first trial, the action was continued in the name of William Perkins, as administrator. From a judgment on the second trial for the administrator defendant appeals. Affirmed.

W. H Wadsworth and LeWright Browning, for appellant.

Greene & Van Winkle and Jno. W. Wood, for appellee.

SETTLE J.

This is the second appeal in this case. On the first appeal, which was prosecuted by the original plaintiff, Gilson Perkins, the judgment of the circuit court was reversed because of error committed by that court in peremptorily instructing the jury to find for the defendant. See Perkins v. Chesapeake & Ohio Railway Co., 94 S.W. 636, 29 Ky. Law Rep. 660. As the opinion on the first appeal contains a full statement of the facts constituting the tort complained of by Perkins, it is only necessary to say here that the action was instituted by him to recover of appellant damages for injuries he sustained by the alleged negligence of the servants of the latter in running an engine and tender over and dragging him, at Ashland, Ky. The answer of appellant denied the negligence complained of, and alleged contributory negligence on the part of Perkins, which was denied by reply. After the reversal, adjudged on the first appeal, Gilson Perkins died intestate, and the action was thereupon revived, and the prosecution thereof continued in the name of his son, Wm. Perkins, as administrator. On the last trial the jury returned a verdict in behalf of the administrator for $1,375, upon which judgment was duly entered by the court. Appellant asked a new trial, which was refused. Hence the present appeal.

The grounds filed in support of the motion for a new trial, and now urged for a reversal, are: (1) That the lower court erred in allowing certain evidence to be introduced by appellee; (2) that the court also erred in instructing the jury; (3) that counsel for appellee was allowed by the court, over appellant's objection, to make an improper argument to the jury.

A part of the alleged incompetent evidence complained of was the statements of the administrator, Wm. Perkins, as to the character and extent of the decedent's injuries; it being the contention of the appellant's counsel that the testimony in question was as to transactions with the decedent, and, in addition, that, as Wm. Perkins was an heir at law of the decedent, and therefore a party in interest, he was not a competent witness under subsection 2, § 606, Civ. Code Prac. The administrator was not excluded from testifying by the provisions of the Code, supra, for he was not testifying in his own behalf against the estate of the decedent, nor did his testimony relate to any transaction with the latter. It only went to show the injuries sustained by the decedent at the hands of appellant's servants, the nature and extent of his suffering, mental and physical, resulting therefrom. In brief, the witness was just as competent to testify to the facts furnished by him as would have been any other witness who was not the administrator or an heir at law of the decedent. An examination of the several authorities relied on by appellant will show that they do not sustain his contention. The witnesses whose testimony they pronounce incompetent were parties in interest endeavoring to fasten liability upon the estate of the decedent in satisfaction of demands alleged to be due them from the estate of the decedent. Hence the testimony offered as to any verbal statements of or transaction with the decedent, whose estate it was sought to charge, were incompetent. But, waiving further discussion of the matter, it is sufficient to say that, if the admission of the testimony of Wm. Perkins could be regarded as error, it was not prejudicial to appellant, for ample testimony as to the same facts given in evidence by him was furnished by at least one other witness, and as there was no material contradiction of his testimony, or that of the other witness, no presumption will be indulged that his failure to testify would have strenghtened the defense interposed by appellant, or lessened the amount of the verdict. L. & N. R. R. Co. v. Lucas' Adm'r, 98 S.W. 308, 30 Ky. Law Rep. 359; Barkley v. Bradford, 100 Ky. 304, 38 S.W. 432.

Appellant also complains that the witness Sharp, who was present when the decedent was injured by appellant's cars, was allowed to express the opinion that he thought he could have...