Consolidated Coach Corporation v. Garmon

• Decision Date: 18 March 1930
• Citation: 26 S.W.2d 20,233 Ky. 464
• Parties: CONSOLIDATED COACH CORPORATION v. GARMON.
• Court: Kentucky Court of Appeals

26 S.W.2d 20

233 Ky. 464

CONSOLIDATED COACH CORPORATION v. GARMON.

Court of Appeals of Kentucky

March 18, 1930

Appeal from Circuit Court, Jefferson County, Common Pleas Branch Third Division.

Action by Esta Garmon against the Consolidated Coach Corporation. From judgment for plaintiff, defendant appeals.

Reversed and remanded.

Gardner K. Byers, of Louisville, and Keenon & Huguelet, of Lexington for appellant.

Hubbard & Hubbard, of Louisville, for appellee.

LOGAN J.

Appellee obtained a judgment against appellant for $2,075 for injuries which she claimed that she received while riding on a bus operated by appellant between Elizabethtown and Louisville. The trip on which she claimed that she was injured was made by her and her husband on December 13, 1927. They had lived in Glasgow, but had decided to leave their location in that city and go to Louisville. They were driven in an automobile from Glasgow to Elizabethtown, where they boarded a bus scheduled to arrive in Louisville about 5:30 p. m. They sat in the rear of the bus during the entire journey.

At the time of this trip appellee had been in a pregnant condition for about four months. The injury complained of was caused by a collision between the bus on which she was riding and a street car traveling in the city of Louisville in front of the bus. The bus was following the street car at the time and when it stopped, probably, according to the evidence, at an unusual place, the bus ran into the rear of the street car. It was a dark and rainy afternoon, and the traffic at the point of the collision was somewhat congested. It is the contention of appellee that the bus struck the rear of the street car with such force that she was thrown from her seat against the back of the seat in front of her, which struck across her abdomen and caused her to rebound against the back of the seat in which she was sitting. Inquiry was made by the driver of the bus to ascertain whether any one had been injured, and there was no claim at the time that an injury had been received by any one. When the bus reached the bus station and the passengers alighted, the husband of appellee told the driver that he and his wife had both been injured. Appellee and her husband went to a rooming house at 646 South Sixth street which was slightly more than a block from the point where she alighted from the bus. She testified that upon her arrival at the rooming house she was suffering with pains in her back, abdomen, and hips, and that her suffering was sufficiently intense to cause her to go to bed. Mrs. L. R. Cassidy, who appears to have been in charge of the rooming house, was at the time, or had been, a trained nurse. She examined appellee two or three days after she arrived at the rooming house, and she testified that she found a bruise across the abdomen of appellee almost as wide as the hand; that she also found her knees skinned and a bruise upon her back. There was some improvement in the condition of appellee, but she testified that she continued to suffer from her injuries until the 7th day of January, when a doctor was called in. On the night of the 15th of January she suffered a miscarriage, and she claims, in her testimony, that she has not recovered.

The evidence seems to preponderate in favor of the appellant that the collision was not such as to cause the injuries complained of, but there was a collision, and appellee testified intelligently and impressively that she was injured. She proved, by Mrs. Cassidy and others, that she had marks upon her body, and there is no question about the miscarriage. Her narrative as to how the injury was received is reasonable and the consequences of the injury were natural. It is most probably true that no injury to appellee would have followed the collision but for her physical condition at the time. The operators of busses must be held to know that there is a reasonable probability that women in a pregnant condition may ride on the busses. It is possible that the vibrations of the bus, which are always more severe in the back seats, was the cause of the miscarriage, and that it would have resulted regardless of the collision. But the jury heard all of the facts and was made acquainted with all of the circumstances by the evidence and, under our system of jurisprudence, juries are the triers of the facts, and there is enough evidence to support the verdict of the jury.

The first ground relied on for reversal by the appellant is that counsel representing appellee was guilty of misconduct in his closing argument to the jury. The argument complained about was this: "Gentlemen, you should find a substantial verdict against this bus Consolidated Coach Corporation, this enormous corporation, so that they will not run into you or other people on the highway and will be more careful in the future."

In response to the argument made on this ground by appellant counsel for appellee contends that no such language was used and that no objection was made to the argument of counsel for appellee at that time. It is stated, by counsel for appellee, that an affidavit was filed by Hugo Taustine, one of the attorneys representing appellant, to the effect that such a statement was made and that a counter affidavit was filed by W. A. Hubbard, one of the attorneys for appellee, and that the court simply allowed both of these affidavits to be made a part of the bill of exceptions. It is indeed unfortunate for appellee if no such argument was made and no objection was made to the argument, as the bill of exceptions, signed and approved by the court, states, in language plain and concise, that the argument was made and objected to. This court is not concerned with the affidavits that were filed. The bill of exceptions is controlling. There is no place for affidavits controverting an exception when the judge signs the bill of exceptions. Section 337, Civ. Code Prac., provides that the judge shall sign the bill of exceptions if he approves it. If he does not approve it, he shall correct it, or suffer the corrections to be made, and then sign it. If a party objects to the correction made by the judge which correction relates to the evidence, such party may, within five days after the bill is signed, file the exception as written...