City of Louisville v. Johnson

• Decision Date: 01 October 1902
• Parties: CITY OF LOUISVILLE v. JOHNSON. [1]
• Court: United States State Supreme Court — District of Kentucky

69 S.W. 803

CITY OF LOUISVILLE v. JOHNSON. ^[1]

Supreme Court of Kentucky.

October 1, 1902

Appeal from circuit court, Jefferson county.

"Not to be officially reported."

Action by Ben Johnson against the city of Louisville to recover damages for personal injuries. Judgment for plaintiff, and defendant appeals. Affirmed.

H. L Stone, for appellant.

Bennett H. Young and E.C. Waide, for appellee.

HOBSON J.

At the intersection of Grayson street with Eleventh street, in Louisville, the gutter runs across Grayson street, and is covered by iron plates weighing from 800 to 1,000 pounds. Grayson street at this point is paved with granite blocks and these blocks next to the gutter covering and for about eight feet back from it are raised somewhat for a footway crossing, this raised portion being opposite the sidewalk but, as the iron covering over the gutter issmooth, and better walking, many persons cross on it. Appellee, Ben Johnson, while crossing it, was seriously injured by one of the iron plates falling upon his foot in such a manner as to crush and permanently injure it. The reason the plate fell upon him was that by the running of wagons over it the stone upon which it rested had been broken or worn away so that the plate did not set level, and when a wagon ran over the other end the end next to him was thrown up, and, as the wagon left, it fell upon his foot. On the first trial of the case there was a verdict for the defendant. The court, on motion, granted a new trial, and on the second trial there was a verdict for the plaintiff for $1,500, on which the court entered judgment

It is insisted for the city that the court erred in granting a new trial. The record does not show on what ground the court acted. We are left entirely to surmise his reasons. There was some newly discovered evidence after the verdict, which was important, and it may be that, aside from this, the court was of opinion that justice had not been done, and that a new trial should be granted on all the evidence before it. Where the trial court has granted a new trial in a case like this it by no means follows that a reversal of the judgment should be had, where this court would have affirmed his judgment if he had refused to grant the new trial. The granting of the new trial is largely a matter of discretion with the trial judge. He hears the witnesses, the trial is had in his presence, he sees the jury, and he necessarily knows of many things that might be prejudicial to the attainment of justice which this court cannot know. On all the facts, we cannot say that the learned circuit judge abused a sound discretion in granting the new trial complained of; on the contrary, the result of the second trial tends strongly to sustain his action. Railroad Co. v. Coniff's Adm'r (Ky.) 27 S.W. 865; Judd's Adm'x v. Railway Co. (Ky.) 37 S.W. 842; Berberich v. Bridge Co. (Ky.) 46 S.W. 691; Vogt Mach. Co. v. Pennsylvania Iron Works (Ky.) 66 S.W. 734. The defect in the gutter was certainly the proximate cause of appellee's injury. It is true the wagon running over the gutter lifted the plate up, and caused it to fall on appellee's foot. But the plate was put there for wagons to run over. and it was negligence in the city, after notice of the situation, to suffer it to remain in a dangerous condition. If the guttering had been in good condition, it would not have been thrown...