I. C. R. R. Co. v. Long

• Decision Date: 10 January 1912
• Citation: 146 Ky. 170
• Parties: Illinois Central Railroad Company v. Long.
• Court: Kentucky Court of Appeals

146 Ky. 170

Illinois Central Railroad Company v. Long.

Court of Appeals of Kentucky.

Decided January 10, 1912.

Appeal from Graves Circuit Court.

ROBBINS & THOMAS, C. L. SIVLEY, W. S. HORTON, R. G. ROBBINS and TRABUE, DOOLAN & COX for appellant.

WEBB & WEAKS and WILSON & LANDRUM for appellee.

OPINION OF THE COURT BY JUDGE MILLER — Reversing.

On August 6th, 1909, appellee, Rosie Long, traveled from Paducah to Calvert City, Ky., upon appellant's train. She arrived at Calvert City about four o'clock in the afternoon, and in alighting from the train she claims she was severely injured through the negligence of those in charge of the train, who suddenly moved it so as to severely jerk her, and throw her upon her hands and knees against the platform. Upon a trial had in 1909 she recovered a verdict for $1,450; but, upon an appeal to this court, that judgment was reversed. (128 S. W., 891.) In reversing the judgment we used this language concerning appellee's case as presented upon that appeal:

"Her statement that the injuries of which she complains were caused by the movement of the train is not supported by any other witness or circumstance, but, on the contrary, is directly contradicted by a number of witnesses and a number of circumstances. The verdict is so flagrantly against the evidence that we feel constrained to order a new trial."

A second trial in March, 1911, resulted in a verdict and judgment for plaintiff for $600, and from that judgment the defendant railroad company prosecutes this appeal. It insists that the case now before us is substantially, if not in all respects, the same case that was presented upon the first appeal, when we reversed the judgment because the verdict was flagrantly against the evidence.

1. A preliminary question is presented, however, by appellee's contention that the question of excessive damages, which was the ground for the reversal of the former judgment, was not made a ground for a new trial upon the second trial of the case, and is not, therefore, now before us. Subsections 4 and 6, of section 340 of the Civil Code of Practice, provide, among other grounds, that a verdict or decision may be vacated and a new trial granted, for the following causes:

"4. Excessive damages, appearing to have been given under the influence of passion or prejudice:

"6. That the verdict or decision is not sustained by sufficient evidence, or is contrary to law."

The grounds assigned for a new trial in this case, and which it is contended do not raise the question of excessive damages, read as follows:

"Because the verdict is excessive and is not sustained by and is against the weight of the evidence, and is contrary to the evidence, and is not sustained by sufficient evidence."

Without going into a detailed comparison of the two sections of the Code above quoted, with the ground assigned for a new trial, which we deem unnecessary, we content ourselves with saying that the grounds are certainly broad enough to raise the question of excessive damages under subsection 4 of section 340 of the Code above quoted. It is not necessary to say that the excessive damages appear to have been given under the influence of passion and prejudice, for if the damages are excessive, and the verdict is not sustained, and is against the weight of the evidence, and is contrary to the weight of the evidence, and is not sustained by sufficient evidence, it sufficiently appears that the verdict was not justified under the evidence, and that the damages were given under the influence of passion or prejudice. The gravamen of the ground is that the damages are excessive.

2. Turning...