Cincinnati, N.O. & T.P. Ry. Co. v. Goode

• Citation: 183 S.W. 264,169 Ky. 102
• Parties: CINCINNATI, N. O. & T. P. RY. CO. v. GOODE. [a1]
• Decision Date: 10 March 1916
• Court: Kentucky Court of Appeals

183 S.W. 264

169 Ky. 102

CINCINNATI, N. O. & T. P. RY. CO. v. GOODE. ^[a1]

Court of Appeals of Kentucky.

March 10, 1916

Appeal from Circuit Court, Lincoln County.

Action by W. E. Goode against the Cincinnati, New Orleans & Texas Pacific Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

K. S Alcorn, of Stanford, and John Galvin and Edward Colston, both of Cincinnati, Ohio, for appellant.

T. J Hill, of Stanford, Robert Harding and Emmett Puryear, both of Danville, O'Rear & Williams, of Frankfort, and John W Rawlings, of Danville, for appellee.

SETTLE J.

There have been three trials of this case in the circuit court, each resulting in a verdict and judgment for the appellee, W. E. Goode, the first being for $8,000, the second for $7,500 and the third for $12,500. The first and second judgments were reversed on appeal. The opinion on the first appeal will be found in 153 Ky. 247, 154 S.W. 941, that on the second appeal in 163 Ky. 60, 173 S.W. 329. The present appeal is from the third and last judgment. The recovery on each trial was by way of damages for injuries sustained to the person of the appellee caused, as alleged, by the negligence of the servants of the appellant, Cincinnati, New Orleans & Texas Pacific Railway Company.

On the first appeal (C., N. O. & T. P. Ry. Co. v. Goode, 153 Ky. 247, 154 S.W. 941) the opinion expressed the conclusion that, as the pleadings then appeared, the first trial of the case was properly had under the state law, but that, as there was such proof on the trial of contributory negligence on the part of the plaintiff as precluded a recovery under the state law, the trial court should have given a peremptory instruction directing a verdict for the defendant; hence the judgment in favor of the former was reversed because of the failure of the court to give such instruction. But in a response to a petition for rehearing the court said:

"Under the facts of this case as they were developed in the evidence, appellee was engaged in interstate commerce when he received the injury complained of. But the case, as made up in the lower court by the pleadings, evidence, and instructions, was practiced under the rules of law prevailing in this state, and not under the federal statute known as the Employers' Liability Act [Act April 22, 1908, c. 149, 35 Stat. 65 (U. S. Comp. St. 1913, §§ 8657-8665)], and we do not see our way clear, in the condition of the record as it now stands, to define the rights of appellee or the liability of the appellants under the federal statute. But on the return of the case the court will permit the parties to tender and file such amended pleadings as they may desire, and will hear and adjudge the case under the federal statute. * * * So much of the opinion as directs that a peremptory instruction be given had reference to a trial under the state law, and is withdrawn."

In the opinion on the second appeal (163 Ky. 60, 173 S.W. 329) it is stated that upon the return of the case following the reversal of the first judgment the plaintiff filed an amended petition setting out more distinctly than he had in his petition facts sufficient to bring his case within the scope of the federal act. But the opinion reversed the second judgment of the circuit court because of error in the instruction on the measure of damages.

Appellee was a brakeman in appellant's employ, and his injuries were sustained in its railroad yards at Ludlow, Ky. while serving it in that capacity. As the facts upon which he based his right to recover and those relied on in support of appellant's defense are fully set forth in the opinions of the former appeals, an elaborate restatement of them here is deemed unnecessary. The issues of law and fact involved are sufficiently shown by the following excerpts from the opinion on the second appeal:

"It will thus be seen that, according to the evidence in behalf of Goode, Hollingsworth was guilty of negligence in approaching the switch at the same time that the passenger train was approaching it, and that Goode, in the discharge of his duty, was endeavoring to stop this engine so that a collision might be avoided. On the other hand, the evidence in behalf of the railway company is that Hollingsworth did not receive any signals from Goode to stop his engine, but voluntarily stopped it at a place where there would be no danger of a collision between it and the passenger engine, and that he did this because he knew the passenger train was going out and had the right of way over him. It is further shown by the evidence of the railway company that Goode did not receive his injuries in the manner stated by him, but that he stepped on the pilot of McCarthy's engine for the purpose of riding, and in some manner unexplained by the evidence slipped or fell from the pilot, receiving the injuries complained of. In short, according to the evidence of the railway company, there was no negligence on its part, and the injuries received by Goode were due to his voluntary act in getting on the pilot of the engine without being directed so to do or required by his duties so to do. * * *

The facts of this case present concurrent acts of negligence that produced the injury. One negligent act was committed by Goode in getting in the way of McCarthy's engine, which he knew was coming, because he had signaled it to come; and the other negligent act was committed by Hollingsworth in approaching the switch at a time when he should have stopped in a safe place to permit the passenger train to get out ahead of him. The negligence of Goode was a contributing, but not the sole, cause of the injury, because the injury would not have happened except for the concurring negligence of Hollingsworth. And, this being so, we think it was proper to submit the case to the jury under proper instructions. * * *

On a return of the case, in lieu of the instruction given [on the measure of damages], the court should tell the jury 'that, if you believe from the evidence that the injuries received by the plaintiff were caused by the negligence of the defendant in the manner and under the circumstances described in instruction No. 1, but were contributed to by the negligence of the plaintiff, then you will diminish the damages, if any awarded him, in proportion to the amount of negligence attributable to the plaintiff, so that the plaintiff will not recover full damages, but only a proportional part bearing the same relation to the full amount as the negligence attributable to the defendant bears to the entire negligence attributable to both.' "

It is insisted by counsel for the appellant railway company that the circuit court erred in the last trial: (1) In refusing a peremptory instruction directing a verdict in its behalf; (2) in instructing the jury; (3) in refusing instructions offered by appellant; (4) that the verdict is flagrantly against the evidence and excessive in amount.

Every ground urged by appellant for the reversal of the judgment, except its complaint of the excessiveness of the verdict, was settled by the opinion on the second appeal adversely to its contentions, and it is a well-recognized rule that the decision of the Court of Appeals on appeal is the law of the case on a subsequent trial, where the evidence on the subsequent trial is substantially the same as on the first trial. L. & N. R. Co. v. Murphy, 150 Ky. 176, 150 S.W. 79; Beaver's Adm'r v. Proctor Coal Co., 159 Ky. 578, 167 S.W. 885; Mutual Benefit Life Ins. Co. v. O'Brien, 149 Ky. 514, 149 S.W. 870; I. C. R. Co. v. Haynes, 144 Ky. 508, 139 S.W. 754; Ky. Distilleries, etc., Co. v. Wells, 149 Ky. 275, 148 S.W. 375; Junior Order U. A. Mechanics v. Ringo, 146 Ky. 602, 143 S.W. 22; C. & O. Ry. Co. v. Johnson, 151 Ky. 809, 152 S.W. 962.

In L. & N. R. Co. v. Setser's Adm'r, 149 Ky. 162, 147 S.W. 956, we held that, where on a former appeal the court indicated the instructions that should be given on a new trial, and the evidence on the new trial is substantially the same as on the first trial, no instructions other than those indicated should be given. In Ky. Traction & Terminal Co. v. Downing's Adm'r, 159 Ky. 502, 167 S.W. 683, we held that, where the evidence was the same on two different trials, defendant, having failed to request an instruction on the first trial based upon the evidence, was concluded from complaining of the court's refusal to give such instruction on the second trial. In Standard Oil Co. v. Marlow, by, etc., 162 Ky. 1, 171 S.W. 436, we held that, where on a former appeal only certain instructions are considered and modified, and the court does not direct that they alone shall be given on another trial, an instruction not criticized is tacitly approved and becomes the law of the case, and should be given on the second trial, either in that form or in a form that will not materially change the effect thereof.

On the second appeal of this case all the instructions given on the second trial, except the one on the measure of damages received our approval, and, as these instructions, together with a correct one on the measure of damages, then directed by the opinion to be given on another trial, were all given on the last trial upon the submission of the case to the jury, it is manifest that the appellant is estopped to complain that the jury were not properly instructed. It is equally manifest that its complaint of the refusal of the court to grant the peremptory instruction asked by it is without merit, as this court expressly held on the second appeal that the refusal of the peremptory instruction by that court on the second trial was not error, and it is not claimed by appellant that the evidence heard on the last trial differs in any respect from that introduced on the...