Howell v. Standard Oil Company
| Decision Date | 13 May 1930 |
| Parties | Howell v. Standard Oil Company. |
| Court | United States State Supreme Court — District of Kentucky |
3. Appeal and Error. — Verdict for defendant, in action for injuries in collision between automobile and defendant's truck, held not flagrantly against evidence.
There was testimony that the cars, each of which was injured about the left front wheel and fender, were found after the collision on plaintiff's side of the road, but defendant's testimony tended to show that the truck was on its right side of the road, with the front wheel turned slightly to the left and the steering apparatus injured, after the accident.
4. Appeal and Error. — Court will not set aside verdict as against preponderance or weight of evidence, but only when flagrantly and palpably against evidence as whole .
5. New Trial. — Newly discovered testimony of disinterested witnesses held so decisive as to require new trial after verdict for defendant, in action for injuries in collision between automobile and defendant's truck, though merely cumulative of plaintiff's and her mother's testimony.
Plaintiff's and her mother's testimony, contradicted by that of truck driver, was that truck crossed road and struck automobile while standing on right side of road. The newly discovered evidence consisted of mechanic's testimony as to marks of collision on automobile, another witness' testimony as to condition of both vehicles shortly after accident, and truck driver's admission of fault, and testimony of two eyewitnesses of accident that automobile was on right side of road, that truck pulled diagonally across the road and ran into automobile, that driver admitted it was his fault, and that truck's tracks were visible entirely across road after accident.
6. New Trial. — Granting of new trial for newly discovered evidence rests largely within trial court's discretion.
7. Appeal and Error. — Trial court's ruling on motion for new trial for newly discovered evidence will not be disturbed unless he abused his discretion.
8. New Trial. — Decisive newly discovered evidence for losing side, coming from disinterested source and bearing materially on issue as to which evidence was equiponderant, requires new trial.
9. New Trial. — Newly discovered evidence, to warrant new trial, must be so decisive that different result is reasonably certain, discovered since trial, not discoverable before trial by ordinary diligence, material to issue, and not merely cumulative or impeaching.
10. New Trial. — Plaintiff held entitled to new trial for newly discovered evidence, though her affidavit merely stated conclusion that new witnesses could not have been discovered by reasonable diligence before trial.
The record disclosed that plaintiff was removed to hospital immediately after injury and confined for weeks, and that two of four new witnesses resided far from plaintiff's residence and scene of accident, and no contradictory or explanatory affidavits were filed.
Appeal from Shelby Circuit Court.
ROSE & HOLLADAY and GILBERT, PICKETT & MATTHEWS for appellant.
HUMPHREY, CRAWFORD & MIDDLETON and TODD & BEARD for appellee.
Reversing.
Bertha Howell instituted an action against the Standard Oil Company to recover damages for personal injury alleged to have been caused by the negligence of defendant's servant in charge of a truck. The negligence was denied by the answer which attributed the injuries to the plaintiff's own negligence. A trial resulted in a verdict for the defendant, and a motion for a new trial was denied. The plaintiff appeals. The errors complained of are that the trial court should have granted a new trial upon the ground of newly discovered evidence; that the verdict was flagrantly against the evidence and that an instruction embracing the doctrine of the last clear chance should have been given. These contentions will be discussed and determined in inverse order.
The appellant offered no instructions, but insists that the court should have instructed the jury under the humanitarian doctrine to the effect that if the plaintiff's peril was discovered in time, by the exercise of ordinary care, to have prevented her injury, it was the duty of defendant's agent to exercise such care for that purpose. Ross v. Louisville Taxicab & Transfer Co., 202 Ky. 828, 261 S.W. 590. The case at bar arose from a collision between motor vehicles on the public highway. There was no opportunity to discover the peril of the plaintiff. She claimed that while sitting in her husband's automobile, which was stopped on the right side of the road, the defendant's truck came from the opposite side of the road directly in collision with the car in which she was sitting, and thereby inflicted injury upon her. The opposite theory that the truck was run into by the Howell automobile was maintained by the defendant. It was a case of two distinct theories, each supported by evidence, and there was nothing shown that called for the application of the doctrine of "the last clear chance." Peak v. Arnett, 233 Ky. 756, 26 S. W. (2d) 1035; Lieberman v. McLaughlin (Ky.) 26 S.W. (2d) 753. Furthermore, the appellant offered no instruction presenting the point now advanced, and it was not incumbent upon the court in any event to instruct the jury on any such theory, in the absence of a request in writing so to do. Hatfield v. Payne, 195 Ky. 310, 242 S.W. 32; Fullenwider v. Brawner, 224 Ky. 274, 6 S.W. (2d) 264; Corlew's Adm'r v. Young, 216 Ky. 237, 287 S.W. 706; Louisville & N.R. Co. v. Jolly's Admr'x, 232 Ky. 702, 23 S.W. (2d) 564; Helge v. Babey, 228 Ky. 197, 14 S.W. (2d) 757.
Equally without merit is the contention that the verdict is flagrantly against the evidence. The testimony for the defendant, which the jury had a right to accept, tended to show that while the truck was standing upon its right side of the road, the car in which plaintiff was riding came over and collided with it. It is argued that the circumstances corroborate the plaintiff's theory and contradict the defendant's theory, but the circumstances of the accident are equivocal. Each of the colliding cars was injured about the left front wheel and fender. There is testimony that the cars were found after the collision on the plaintiff's side of the road, but the defendant's testimony tends to show that the truck, after the accident, was on the right side of the road with the front wheel turned slightly to the left and the steering apparatus injured, as a result of the impact. It will thus be seen that there was a direct conflict in the evidence and it was possible for the jury to find for either party, depending upon which testimony it accepted. The verdict was not flagrantly against the evidence. Appellant correctly states the rule which prevails under subsection 6, sec. 340 of the Civil Code, to the effect that the court will not set aside a verdict merely because it is against the preponderance or weight of the evidence, nor because of numerical superiority of witnesses, but only when the verdict is flagrantly and palpably against the evidence as a whole. Louisville & N.R. Co. v. Baker's Adm'r, 183 Ky. 795, 210 S.W. 674; Louisville & N.R. Co. v. Rowland, 227 Ky. 841, 14 S.W. (2d) 174; Louisville & N.R. Co. v. Curtis, 233 Ky. 276, 25 S.W. (2d) 398; Commonwealth Life Ins. Co. v. Pendleton, 231 Ky. 591, 21 S.W. (2d) 985.
The main insistence of appellant is that a new trial should have been granted because of newly discovered evidence. At the trial, the plaintiff and her mother testified to the effect that the truck came across the road and struck the automobile while it was standing near the margin of the road on the right side. This testimony was consistent with the circumstances adduced, but it was squarely contradicted...
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