Hines v. May

Citation230 S.W. 924,191 Ky. 493
PartiesHINES, DIRECTOR GENERAL OF RAILROADS, v. MAY.
Decision Date13 May 1921
CourtCourt of Appeals of Kentucky

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

Action by Louis F. May against the Louisville & Nashville Railroad Company, wherein Walker D. Hines, Director General of Railroads, etc., was substituted as defendant. From judgment for plaintiff, defendant appeals. Affirmed.

In an action against the federal Director General of Railroads for injuries to a pedestrian on the track, testimony of a medical witness that in his opinion plaintiff's apparent lung trouble resulted from the accident was properly admitted.

Benjamin D. Warfield and Moorman & Woodward, all of Louisville, for appellant.

Blakey Davis & Lewis, of Louisville, for appellee.

THOMAS J.

The tracks of the Louisville & Nashville Railroad Company in the city of Louisville, going from Kentucky street to Breckinridge street, both of which it crosses at practically right angles, runs north and south, and parallels Underhill street on the east and Logan street on the west. Between Kentucky and Breckinridge streets it crosses Bear Grass creek, over which there is a concrete bridge with a smooth plank floor, and at the sides are walks with railings. Along that right of way there are some factories, and perhaps some residences, and there are other residences facing Underhill and Logan streets, with the lots abutting the railroad right of way at the rear of them. Somewhere near 8:30 a. m. on May 13, 1918, the appellee and plaintiff below, Lewis F. May, who was about 50 years of age, was walking north from the bridge spanning Bear Grass creek, and when he reached a point about 51 feet from the north end of that bridge he was struck by a passenger train and was knocked a considerable distance, and sustained various injuries to his body, to recover for which he filed this suit, originally against the Louisville &amp Nashville Railroad Company, but the Director General of Railroads was later substituted as a defendant.

It was alleged in the petition that the place where plaintiff was injured was one so habitually used by a sufficient number of people during the day, including the hour of the happening of the injury, as to impose upon those operating trains the duty of anticipating the presence of persons upon the track and to take such precautionary measures to warn persons on the track and to prevent injury to them as are imposed by law under such conditions, and that the servants of defendant, in operating the particular train in question, failed to take such precautions or to perform such duties. There was also a general charge of negligence and carelessness on the part of the operators of the train, by reason of all of which plaintiff sustained his injuries, and he sought to recover a judgment against defendant for the sum of $20,830. The answer controverted the allegations of the petition, especially the acts of negligence alleged therein, and affirmatively pleaded in another paragraph contributory negligence on the part of plaintiff, which was denied by reply, thus making the issues. Upon trial there was a verdict in favor of plaintiff for the sum of $5,000, upon which judgment was rendered, and defendant's motion for a new trial was overruled, followed by the prosecution of this appeal.

In the motion for a new trial eight separate grounds are set out and relied on, but none of them are argued upon this appeal except (1) incompetent evidence introduced by plaintiff over the objections of defendant; (2) misconduct of counsel in interrogating witnesses; and (3) error of the court in giving and in refusing instructions. There is no complaint about the size of the verdict.

1. A large portion of the brief of learned counsel for defendant is taken up in the discussion of a number of items of alleged incompetent testimony, some of which we regard as extremely technical, as well as immaterial, and we will therefore refer to only such of them as we consider are the more important ones, and which will serve to illustrate the insufficiency of this general ground of complaint against the verdict.

It is first insisted (a) that the court erred in permitting plaintiff to answer that no one had warned him to keep off the track at the place where he was injured, but in examining the record we fail to find any objection to this testimony, and, though we should assume for the sake of argument that it was technically erroneous, as we think it was, and that it was sufficiently prejudicial to authorize a reversal (which we think it was not), it cannot be considered on this appeal because of the failure to object to its introduction.

It is next insisted (b) that questions asked some of the witnesses for the purpose of eliciting the extent of the use of the track were improperly framed, in that they inquired of the witnesses the extent of the use of the track "by the general public." As we gather from the record, the question was so framed only as to 2 or 3 of the 10 witnesses who testified upon that issue, and even their testimony as a whole convinces us that in making their answers they regarded the term "general public" as synonymous with a large number of people who use the track as a walkway between Kentucky and Breckinridge streets, which included the place where the accident occurred, and we are thoroughly convinced that if it should be held that the questions were not framed with technical accuracy no prejudicial effect resulted therefrom.

Again it is insisted (c) that Dr. Kelsall, a witness introduced in behalf of plaintiff, was improperly allowed to say that an apparent lung or throat trouble with which plaintiff was suffering at the time of the trial, and from the date of the accident, was, according to his opinion, produced by the accident, and it is insisted that the same witness was permitted to state his opinion as to the truthfulness of certain statements which plaintiff had made to him. The record does not bear out the latter complaint, since the court declined to permit the witness to answer the question, but did permit him to answer that in his opinion the apparent lung trouble resulted from the accident. We do not find here any departure from the usual rules of practice, and besides, as we have stated, there is no complaint made about the size of the verdict, and, therefore if the testimony was erroneous and prejudicial the objection to it could not be made effectual on this appeal, for the manifest reason that there is no objection to that part of the verdict of the jury to which it was directed.

Objection was also made (d) to the introduction of a memorandum containing certain measurements and distances which had been taken by plaintiff, but transcribed on the memorandum by his attorney, and which plaintiff read and verified as being correct, and the truth of which he adopted as though the memorandum had been made by himself. Under these circumstances we fail to grasp the force of the objection to the complained of testimony.

Another objection under this ground is (e) that the court erred in permitting the city assessor to introduce the official maps of the city, showing Kentucky and Breckinridge streets and the right of way and the tracks of defendant between them, because, as insisted, the one who made the maps did not testify as to their accuracy.

In support of this objection the cases of Hays v. Ison, 72 S.W. 733, 24 Ky. Law Rep. 1947, Ligon v. Allen, 157 Ky. 101, 162 S.W. 536, 51 L. R. A. (N. S.) 842, and C., N. O. & T. P. R. R. Co. v. Nolan, 161 Ky. 205, 170 S.W. 650, are cited and relied on. The condemned testimony in the Hays Case was a private map, the verity of which was not established, and in the other two cases referred to the testimony objected to was unverified photographs, which also had a private origin. None of the testimony in either of the cases were public documents or records which were officially made and kept for the purpose of preserving the facts appearing upon them. In the latter case there is a presumption that such public records and documents correctly represent the facts, and that the officer who prepared them, and whose duty it was to make them accurate, properly performed his duty. Wigmore on Evidence, § 1632; 22 Corpus Juris, pp. 812, 814, and 10 R. C. L. 1127.

Following this rule, it is the constant practice to introduce such public records without first verifying their accuracy by the one who made them. Aside, however, from the foregoing statement, the only objection urged against the introduction of the maps was that they did not show the curvature of the railroad track between Kentucky and Breckinridge streets as it actually exists, and as it is shown by some photographs also introduced; but we think counsel is mistaken in this, since our examination of the maps (which have been brought to this court with the record) shows practically the same curvature in the right of way of the defendant, between the streets mentioned, as is shown by the other testimony in the case and we cannot, therefore, conceive of any prejudicial effect growing out of the introduction of the maps, even if it be conceded that they were erroneously introduced.

It is furthermore seriously insisted (f) that the court erred in allowing counsel to ask plaintiff if he was sober upon the occasion in question. Perhaps it was improper for counsel to ask this anticipatory question, but we are wholly unable to see,...

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18 cases
  • City of Pineville v. Lawson
    • United States
    • United States State Supreme Court — District of Kentucky
    • 19 Octubre 1928
    ...164 Ky. 718, 176 S.W. 183, wherein a similar instruction was refused under similar facts. In the case of Hines, Director General, v. May, 191 Ky. 493, 230 S.W. 924, we again affirmed a judgment under similar circumstances, and where a similar instruction had been refused. We have examined t......
  • City of Pineville v. Lawson
    • United States
    • Kentucky Court of Appeals
    • 8 Junio 1928
    ...164 Ky. 718, 176 S.W. 183, wherein a similar instruction was refused under similar facts. In the case of Hines, Director General, v. May, 191 Ky. 493, 230 S.W. 924, again affirmed a judgment under similar circumstances, and where a similar instruction had been refused. We have examined the ......
  • McGraw v. Ayers
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    • United States State Supreme Court — District of Kentucky
    • 14 Marzo 1933
    ...a benefit for his client, which the facts do not warrant by pursuing an undue course approaching corruption. Hines, Director General, v. May, 191 Ky. 493, 230 S.W. 924; Standard Sanitary Mfg. Co. v. Brian's Adm'r, 224 Ky. 419, 6 S.W. (2d) 491. The court admonished the jury to disregard the ......
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