City of Ashland v. Williams

• Decision Date: 20 May 1924
• Parties: CITY OF ASHLAND ET AL. v. WILLIAMS.
• Court: Kentucky Court of Appeals

262 S.W. 273

203 Ky. 300

CITY OF ASHLAND ET AL. v. WILLIAMS.

Court of Appeals of Kentucky.

May 20, 1924

Appeal from Circuit Court, Boyd County.

Action by Eli Williams against the City of Ashland and another. Judgment for plaintiff, and defendants appeal. Reversed and remanded for new trial.

John L Smith and George B. Martin, both of Catlettsburg, and John T Diedrich, of Ashland, for appellants.

C. R Levi, J. B. Adamson, and Dysard & Adamson, all of Ashland for appellee.

HOBSON C.

Appellee, while riding his motorcycle, received a serious injury in Ashland, Ky. November 7, 1919, and brought this action to recover therefor.

The facts are these: Winchester avenue runs east and west parallel to the Ohio river. The tracks of the Ohio Valley Electric Railway are in this street. For some weeks before November, 1917, the railway company was repairing its track, and to this end had taken up the brick between the tracks and was running its cars on a temporary track north of the permanent track. The bricks were stacked on the north side of the temporary track, the stack being about four feet wide and three feet high and extending for several squares, and about ten feet east of the intersection of Seventeenth street with Winchester avenue. Appellee worked at a lumber plant near the river front on Seventeenth street. His route home was south on Seventeenth street to Winchester avenue and thence east on the south side of Winchester avenue. He left his place of work at 5 o'clock on a motorcycle with a friend whom he was taking home on it with him. As he passed Winchester avenue that morning going to his work, he noticed that the track was completed and that all that was to be done was to move the pile of brick projecting across Seventeenth street. Theretofore, as he returned in the evening lights were on this pile of brick, and a watchman there who would signal to him to come on. But as he returned this evening there were no lights and no watchman, so he assumed that the way was clear. He was running about eight miles an hour. When he got to Winchester avenue, he saw an automobile coming west on Winchester avenue and on the north side about 150 feet from him. The testimony is conflicting as to what followed. The testimony for him is to the effect that he had plenty of time to cross Winchester avenue in front of the automobile and that thinking the way was clear he went ahead until he saw the bricks in front of him; that then he checked his car and undertook to turn to the west, that just as he did this the automobile came along, and the front wheel of the automobile struck the front wheel of his car, and this threw the motorcycle against the car, breaking his leg about three inches above the knee; that the collision was due wholly to his having to check his car and turn to the west by reason of the obstruction. On the other hand, the proof for the defendant is to the effect that the automobile was running about eight miles an hour, intending to stop after passing the intersection, and that the motorcycle ran into the automobile front on striking it about the middle of the body. There was a verdict and judgment for the plaintiff for $10,500, against both the city and the railway company, and, their motion for a new trial having been overruled, they appeal.

After the verdict was returned, the defendants moved the court for judgment notwithstanding the verdict on the ground that there was no reply filed to the second paragraph of the answer of the city pleading contributory negligence. The record shows this order entered at a previous term of the court:

"The plaintiff this day produces his reply to the second paragraph of defendants' answer herein which is filed."

The reply to the city's answer was not in the record when the case was tried, but it was shown by the attorney and the clerk that the reply was filed as stated in the order, and a carbon of the reply, which had been retained by the attorney, was filed on the hearing. Plaintiff on the showing made moved the court to supply the lost record by filing the carbon in lieu of the original reply which was lost. The court overruled the motion for judgment and also overruled the plaintiff's motion to substitute the carbon of the reply for the lost paper. The record sufficiently shows that the reply was filed, and the motion for judgment, notwithstanding the verdict, was properly overruled; but the court should on the showing made have sustained the plaintiff's motion to file the carbon of the lost paper, and on the return of the case this will be done.

In this court a motion has been made for a subp na adduces tecum for the clerk of the court to bring to this court the original bill of exceptions, and in support of that motion affidavits have been filed showing that in the original bill of exceptions the instructions given by the court to the jury are not inserted, but that these words are used after naming the instructions by number, "The clerk will here insert them." The clerk has inserted the instructions as directed by the court, and they are identified by the judge's signature as given or refused. There is no complaint that the clerk has inserted the wrong papers. In Meaux v. Meaux, 81 Ky. 478, this court thus stated the rule on the subject:

"The usual mode of making up bills of exceptions is by the direction, here insert instructions 1, 2, h, or instructions a, b, h, or instructions in the handwriting of the court or counsel, so as the clerk can identify them; and when copied into the bill of evidence, in the usual form, the bill is complete and the instructions a part of the record; or when the court directs the insertion of the instructions without identifying them, and the clerk inserts the instructions, thereby making the bill complete, this court will not grant the writ of subp na duces tecum that the original bill may be inspected, unless there is an affidavit that the instructions embodied in the bill were not those offered, given, or refused by the court on the trial, and so with reference to any exhibit made part of the bill of evidence."

This case was followed in Garrott v. Ratliff, 83 Ky. 386; Higgins v. L. & N. Railroad Co., 38 S.W. 876, 18 Ky. Law Rep. 900; L. & N. R. R. Co. v. Peltier, 45 S.W. 518, 20 Ky. Law Rep. 170; and in many other unreported cases. The motion for subp na adduces tecum is overruled.

It is earnestly insisted that the...