Hurt v. Louisville & N.R. Co.

• Decision Date: 23 October 1903
• Citation: 76 S.W. 502,116 Ky. 545
• Parties: HURT v. LOUISVILLE & N. R. CO.
• Court: Kentucky Court of Appeals

76 S.W. 502

116 Ky. 545

HURT v. LOUISVILLE & N. R. CO.

Court of Appeals of Kentucky.

October 23, 1903

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

"To be officially reported."

Action by Calvin I. Hurt against the Louisville & Nashville Railroad Company.From a judgment in favor of defendant, plaintiff appeals.Affirmed.

Bennett H. Young and Edwin C. Waide, for appellant.

Helm Bruce & Helm, for appellee.

O'REAR J.

Appellant was a member of a switching crew in appellee's yard at Louisville.A flt car loaded with railroad rails was "kicked" or turned loose, with a strong shove from the locomotive, down a track that crossed a public street.It was appellant's duty to mount this car as it passed him and to set the brake so as to stop it within a reasonable distance.In setting the brake, appellant fell or was thrown from the car, falling in front of it, and lost two of his limbs, and was otherwise hurt.This suit charged that the injury was because of the gross negligence of appellee's agents in charge of the locomotive in delivering the car at a too rapid rate, and in the failure of appellee to provide the car with a safe brake.The car was turned loose, when going, appellant testified, at 8 or 10 miles an hour.Witness for appellee said at 2 to 6 miles an hour.Others thought it was more than 10 miles an hour, while some expert witnesses, who were not present at the time of injury, thought, from the distance the car traveled before stopping, that it was from 12 to 20 miles an hour.Appellant made two efforts to set the brake.The first time he thought it was set tight enough, but, finding it was not, and probably because of a command of some one to stop the car, he attempted to set it tighter.He says that, as he swayed his body forward and outward to give the brake wheel the necessary turn, "something slipped or gave way," and he fell in front of the moving car.He did not know what it was that slipped or gave way.He had not previously examined the brake or the car, nor had apportunity to, so far as was shown, and did not afterward examine it.The brake was an upright iron rod, extending about three feet above the platform of the car, and surmounted with an iron wheel used in turning it.It extended below the platform.A chain was attached to the lower end, and connected with a horizontal rod attached to the brake beam.As the brake wheel was turned the chain was wound around the upright rod, thereby shortening the chain and drawing the brakes against the wheels.Appellant said that he thought--and that is his theory of the cause of the accident--that this chain was too long, and lapped upon itself, partially, in the setting up of the brake, and, when he put the extra force on the wheel to set it tighter, the chain slipped off the lap, whereby he was given an unexpected lurch forward and was thrown, as stated.If the chain was so long as to permit it to overlap, or "ride" itself, it is claimed that it was an unsafe provision, and that allowing it to be so was negligence on the part of the company.A number of persons inspected the car and the brake immediately after the accident--within a few minutes--and while it was in the same condition as it was when the injury occurred.They all testified that the chain was not too long, and was in perfect order.The brake was set up, and worked properly.There were three trials of the case.At the first trial the jury disagreed.Upon the second trial the jury returned a verdict for appellant in the sum of $10,000.A motion was made by the company for a new trial based upon numerous grounds--among others, that the verdict was flagrantly against the weight of the evidence, and that the verdict was excessive.The court granted a new trial, but upon which of the grounds, the record does not show.Upon the third trial, upon substantially the same evidence and under practically the same instructions, the jury found for the defendant(appellee).Appellant's motion for a new trial was overruled.This appeal seeks to reverse the action of the trial court in setting aside the verdict for $10,000 and granting a new trial of the action, and to have this court order a reinstatement of the judgment upon that verdict, or, if that is not done, then that the judgment in this case upon the verdict rendered at the last trial be set aside because the court failed to properly instruct the jury at appellant's instance.

We will first review the action of the trial court in setting aside the verdict in appellant's behalf.Appellee insisted that there was no evidence to have authorized the submission of the case to the jury at all, and that its motion for a peremptory instruction should have been sustained.The trial court, however, did not set aside the verdict on this ground, manifestly, because, upon the next trial, when the evidence was not materially different, he again refused to grant a peremptory instruction, and submitted the case to the jury.Nor was the action of the court probably based upon the complaint of the company that the court had misinstructed the jury, for upon the next trial he gave about the same instructions as before.His action, then, must have been based upon the ground either that the verdict was not sustained by, but was contrary to, the evidence, or that the amount of damages was excessive.

Trial courts have, and ought to have, a very liberal discretion accorded to them in the matter of passing upon grounds for a new trial; and in this, as in other...