Howard v. Louisville Ry. Co.

• Decision Date: 04 December 1907
• Citation: 105 S.W. 932
• Parties: HOWARD v. LOUISVILLE RY. CO.
• Court: Kentucky Court of Appeals

105 S.W. 932

HOWARD v. LOUISVILLE RY. CO.

Court of Appeals of Kentucky.

December 4, 1907

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

"Not to be officially reported."

Action by Mellie Howard against the Louisville Railway Company. From a judgment for defendant, plaintiff appeals. Affirmed.

W. O Bradley and Popham & Webster, for appellant.

Farleigh Strauss & Farleigh, Forcht & Field, and Greene & Van Winkle, for appellee.

CARROLL J.

Appellant, who was plaintiff below, brought this suit against appellee to recover damages for injuries sustained by the alleged carelessness and negligence of appellee's agents and servants in suddenly and violently starting a street car upon which appellant had entered as a passenger and was in the act of taking a seat. An answer controverting the averments of the petition, and pleading contributory neglect, was filed, and this pleading, together with a reply and an amended answer that will be hereafter noticed, constituted the pleadings in the case. A trial had before a jury resulted in a verdict in favor of appellee. Appellant asks a reversal of the judgment upon the verdict (1) for error in allowing an amended answer to be filed, (2) error in instructing the jury, and (3) because the verdict was flagrantly against the evidence.

The witnesses who testified in behalf of appellant were herself, her daughter, and her daughter-in-law. On the evening of December 24, 1905, they boarded a Shelby street car at the corner of Seventh and Market streets for the purpose of going to their home in the eastern part of the city. Appellant, with a market basket in her hand, got on the car first, closely followed by her daughter-in-law and her daughter. They testified that while appellant was going in the door of the car from the platform, or immediately after she stepped inside, the car started with a violent jerk, causing her to be thrown against one of the seats, injuring her quite severely, and that except for the fact that she was caught by the conductor appellant's daughter would have been thrown from the step on which she had gotten in her effort to board the car, and that the daughter-in-law was only saved from falling by catching hold of the door. Neither of the parties made any complaint to the conductor or motorman that the car was started either too suddenly or violently, nor did they inform them that appellant had received any injuries, nor was appellee company advised of the fact until some days afterwards. The motorman and conductor on the car, both of whom testified for appellee, knew nothing about the accident, as neither of them were apprised of it at the time, although both of them say that the car was not negligently or carelessly started at Seventh street.

As three witnesses testified to the fact that the car was suddenly started with a violent jerk, and there was no direct evidence to the contrary, counsel for appellant earnestly insist that the verdict was palpably against the evidence. In trials by jury it does not follow that because one or more witnesses testify positively concerning a fact, and there is no evidence to the contrary, the verdict must be flagrantly against the evidence. The number of witnesses who testify to a fact is not necessarily a controlling feature in determining its truth; neither does the fact that their evidence may not be contradicted by word of mouth compel its acceptance as true. The jury have the right to disregard the whole or any part of the testimony of any witness, and it is their province to give such weight to the evidence as in their judgment and discretion it is entitled to. In considering the weight to which evidence is entitled, and the credibility that shall be attached to the words of the witness, the jury may, and often do, take into consideration the demeanor, the appearance, and the manner of the witness and, from these and other circumstances that come...