Horton v. L. & N. R. Co.
| Decision Date | 27 April 1923 |
| Citation | 199 Ky. 279 |
| Parties | Horton v. Louisville & Nashville Railroad Company. |
| Court | Kentucky Court of Appeals |
Appeal from Lee Circuit Court.
JOHN D. CARROLL, H. T. BEATTY, J. MOTT McDANIEL and S. P. STAMPER for appellant.
BENJAMIN D. WARFIELD, ROSE & STAMPER, HUNT, NORTHCUTT & BUSH, ASHBY M. WARRENT, C. S. LANDRUM and S. M. WILSON for appellee.
In this action to recover damages for personal injuries, based upon a failure of the defendant to warn plaintiff of the train's approach, as well as a failure to stop it in time to avoid injuring him after discovering his peril, the case was submitted to the jury upon the latter issue only, and plaintiff recovered a verdict and judgment for $5,000.00. In reversing that judgment, we held that the petition did not state a cause of action upon either of the two grounds attempted, and that the court erred in overruling a demurrer thereto, as well as in the admission of evidence and in the instructions given. L. & N. R. Co. v. Horton, 187 Ky. 617, 219 S. W. 1084.
We did not, however, in that opinion refer to the question of the sufficiency of the evidence to carry the issue of discovered peril to the jury, although counsel for defendant, in brief, insisted as a ground for reversal that the court erred in overruling its motion for a directed verdict because both the pleadings and evidence were insufficient to support that issue.
Upon a return of the case to the lower court, plaintiff was permitted, over defendant's objection, to file an amended petition, in which he attempted to perfect his cause of action solely upon the theory that the defendant negligently injured him after discovering his peril. Although the evidence upon that issue was the same upon both trials, as is not denied by counsel for defendant, the court, at the conclusion of plaintiff's evidence, directed a verdict for the defendant, and dismissed the action.
For reversal of that judgment, plaintiff insists that under the doctrine of the "law of the case" as observed in this state, the former opinion in effect held, and conclusively determined, that plaintiff's evidence on the first trial was sufficient to carry that issue to the jury, and that the lower court therefore necessarily erred in deciding otherwise upon the second trial.
Appellate courts have quite generally recognized this doctrine, although there is much diversity of opinion both as to its true character and its proper limitations, as well as some tendency to question its soundness, however restricted. (Hastings v. Foxworthy, 45 Nebr. 676, 34 L. R. A. 321, and note.) But the rule long established and uniformly observed by this court, as well as most others, is thus stated in Goff v. Lowe, 141 Ky. 799, 133 S. W. 995:
"When a case is brought here, the opinion is conclusive of all questions either decided in the opinion or presented by the record and passed unnoticed in the opinion; for what the court passes unnoticed must be deemed to be approved."
Continuing, the court states as the reason supporting the rule:
Some of the many cases to the same effect are: Cox's Admr. v. L. & N. R. R. Co., 137 Ky. 388, 125 S. W. 1056; City of Louisville v. Fidelity & Columbia Trust Co., 182 Ky. 551, 206 S. W. 778; U. S. Fidelity & Guaranty Co., v. Foster, 153 Ky. 698, 156 S. W. 371; Wall's Extrs. v. Dimmitt, 141 Ky. 715, 133 S. W. 768; U. S. Fidelity & Guaranty Co. v. Blackley, 27 Ky. L. R. 392; Ill. Life Ins. Co. v. Wortham, 119 S. W. 802; Smith v. Brannin, 79 Ky. 114; Dupoyster v. Ft. Jefferson Imp. Co., Receiver, 121 Ky. 518, 89 S. W. 509.
In recognition of this rule, and in order to avoid its consequences, it long has been the practice of this court to expressly reserve in its opinions any questions presented by the record which it desires to leave open, just as was done upon the first appeal of the case of L. & N. R. R. Co. v. Wright, 186 Ky. 498, 217 S. W. 1016. Hence the fact that upon a second appeal of that case, reported in 193 Ky. 59, 235 S. W. 1, we held that the opinion on the former appeal did not conclude a question presented by the record but not expressly decided therein, does not furnish authority for so holding here, as is contended by appellee.
As there was no such reservation in the opinion upon the former appeal of this case, it results that under our rule, which we have no disposition either to restrict or enlarge, all questions then presented by the record, whether discussed in that opinion or not, were concluded thereby.
Hence, the only remaining inquiry is, whether the sufficiency of the evidence upon the question of discovered peril was presented by the record on the first appeal, and of this there can be no kind of doubt, since that issue was submitted to the jury on the same evidence produced on the second trial after the question of its sufficiency had been raised by defendant's motion for a directed verdict, which the court overruled, over its exception and objection.
It is urged, however, for the defendant, that its motion for a directed...
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