Davis v. Davis

• Decision Date: 23 June 1922
• Citation: 242 S.W. 870,195 Ky. 522
• Parties: DAVIS, DIRECTOR GENERAL, ET AL. v. DAVIS. DAVIS, DIRECTOR GENERAL, ET AL. v. RODGERS' ADM'X. DAVIS, DIRECTOR GENERAL, ET AL. v. BUSH'S ADM'R.
• Court: Kentucky Court of Appeals

242 S.W. 870

195 Ky. 522

DAVIS, DIRECTOR GENERAL, ET AL. v. DAVIS.

DAVIS, DIRECTOR GENERAL, ET AL. v. RODGERS' ADM'X.

DAVIS, DIRECTOR GENERAL, ET AL. v. BUSH'S ADM'R.

Court of Appeals of Kentucky.

June 23, 1922

Appeal from Circuit Court, Woodford County.

Three separate actions by E. L. Davis, by the administratrix of J Claude Rogers, deceased, and by the administrator of William Henry Bush against James C. Davis, as Director General of Railroads, and another. Judgment for the plaintiff in each case, and defendants appeal. Affirmed.

Wallace & Harriss, of Versailles, and Hunt, Northcutt & Bush, of Lexington, for appellants.

Franklin Talbott & Chapman, of Lexington, for appellees.

SAMPSON J.

These three cases, growing out of the same accident, were consolidated, tried, and heard together in the lower court. A railroad train operated by the Director General over the Louisville & Nashville tracks was going from Frankfort towards Lexington, and was near Payne's Station, when it struck and demolished a Ford car on a highway crossing killing two of the three occupants and seriously injuring the third. Three separate actions were commenced--one by Davis the driver of the car, and who was not killed; another by the administratrix of Rodgers, one of the killed; and the third by the administrator of Bush, a colored boy killed in the same accident. The facts in each case were the same, but the trial judge gave separate instructions in each case. The jury, after consideration of the three cases, returned a verdict in favor of the appellee E. L. Davis, and against the Director General of Railroads and James W. Smith, the engineer in charge of the train, in the sum of $5,375, $5,000 of which was for injuries to his person and $375 for the loss of his automobile. The jury also returned a verdict in favor of the administratrix of Rodgers against the same defendants for the sum of $20,000, and another verdict in favor of the estate of William Henry Bush, colored, in the sum of $5,000. The Director General of Railroads and the engineer Smith are prosecuting this appeal.

Appellants filed motion and grounds for new trial in each of the cases in which they set out in substance the following reasons for vacating the judgment: (1) Because the court erred in admitting incompetent, irrelevant, and immaterial evidence for the plaintiff over the objection of the defendant: (2) error in refusing competent evidence offered by appellant; (3) the court erroneously refused to direct a verdict in favor of appellants at the conclusion of the evidence for plaintiffs as well as at the conclusion of all the evidence; (4) because the court erred in failing to give instructions offered by appellant; (5) the court erred in giving the instructions on which the verdict was returned; (6) the verdict and judgment are contrary to, and not supported by, the evidence; (7) the verdict and judgment are contrary to law; (8) the verdict is excessive, appearing to have been given under the influence of passion and prejudice.

On this appeal only one ground is seriously urged by appellants for a reversal of the judgment. In brief of counsel for appellants it is said: "While the complaint made against the appellants in the pleadings was a general charge of negligence, yet the evidence adduced by appellees on the trial, the instructions offered by them and given by the court, demonstrate that they relied for a recovery solely upon the claim that appellants failed to give the statutory warning by whistle and bell of the approach of the train to the crossing.

The appellees introduced witnesses who testified, mostly negatively, that the statutory signals were not given. The appellants presented witnesses who gave evidence, mostly direct, that the statutory signals were given. There is a contrariety of evidence as to whether the signals were or were not given; and it is therefore needless to discuss the evidence of the many witnesses who testified that the signals were given, or that of those who said they were not given, or of those who did not hear them, or to argue the instructions that were given to the jury which relate to the duty of appellants to signal."

It is further said in brief for appellants that one traveling on the highway, either on foot or by automobile, cannot see from the point where the...