Appeal
from Circuit Court, Franklin County.
SAMPSON
J.
This is
the second appeal of this case. The opinion on the first
appeal is found in 168 Ky. 351, 182 S.W. 214, L. R. A. 1916D
514.
The
case has been tried in the circuit court three times. On the
first trial the jury awarded plaintiff damages in the sum of
$15,000. This verdict and judgment was set aside and a new
trial granted by the lower court. On the second trial
plaintiff recovered a verdict for $6,000, and, the motion and
grounds for new trial being overruled, it was appealed to
this court, and reversed, with directions to peremptorily
instruct the jury to find for the defendant upon another
trial if the evidence produced by plaintiff was substantially
the same as upon the second trial.
Upon
the third trial in the circuit court the jury was
peremptorily instructed to find and return a verdict for the
defendant railroad company, upon which verdict judgment was
entered, and from which Johnson appeals, insisting that upon
the third trial he introduced a new witness who gave evidence
not only supplementing that given upon the other trials, but
in addition, testifying, in substance, that the train gave an
unusual jerk in attempting to start at the time plaintiff was
injured. Except for this new witness, Homer Wise, it is
admitted the evidence is substantially the same as upon the
second trial.
The
rule of this court that the opinion on the first appeal on
all points discussed therein is the law of the case on all
subsequent trials is too well established and too generally
recognized to need restatement or argument here. This rule is
stated and recognized in the following cases: Kirchdorfer
v. Ward, 167 Ky. 298, 180 S.W. 378; Adams Express
Co. v. Hoeing, 88 Ky. 373, 11 S.W. 205, 10 Ky. Law Rep
999; Pettit v. Marble, 35 S.W. 906, 18 Ky. Law Rep.
167; Louisville & Nashville R. R. Co. v. Queen City Coal
Co., 99 Ky. 217, 35 S.W. 626, 18 Ky. Law Rep. 126;
Schmetzer v. Louisville & Nashville R. R. Co., 44
S.W. 395, 19 Ky. Law Rep. 1713; Iset v. Davis, 37
S.W. 151, 18 Ky. Law Rep. 510; Brown, Assignee, v. Marion
National Bank, 35 S.W. 926, 18 Ky. Law Rep. 186;
Hopkins v. Adams Roth Grocery Co., 105 Ky. 357, 49
S.W. 18, 20 Ky. Law Rep. 1227; Martin v. Spurlock,
122 S.W. 125; Brooks v. City of Maysville, 151 Ky.
707, 152 S.W. 788; Mahoney v. Mentz's Assignee,
153 Ky. 484, 155 S.W. 1137; Doherty v. First Nat.
Bank, 161 Ky. 202, 170 S.W. 615.
In the
first opinion the facts are found as follows:
"The
proof shows that, notwithstanding the crippled condition of
the plaintiff, he was perfectly able to walk about and go
wheresoever he pleased. He resided with his daughter about
four miles from Winchester, and in going to town frequently
walked part of the way and sometimes all the way, and on
the day he made this trip he started from his home with a
grip, or suit case, and, after walking perhaps one-half of
the way, he rode into town in a vehicle with a traveler on
the turnpike. He deposited his grip in a saloon where he
drank a milk punch, and, after leaving the saloon and
visiting some places in town, he returned and drank another
milk punch, and later on, after engaging in other travel
about the city, and about 11 o'clock, he returned to
the saloon and drank a third milk punch. At this time he
purchased two pints of whisky and put them in his grip, or
suit case. He then went to the home of one Mr. Dougherty,
where he had his dinner, and about 3:30 o'clock he left
this place and went to the saloon and took out one of the
pints of whisky and put it in his pocket, and then went to
the depot and purchased his ticket, and subsequently
boarded the train. He took his seat on the left-hand side
of the rear end of the smoking car, the next car following
being the day coach, or ladies' car. He put his grip on
the seat immediately in front of the one he was occupying,
and there was sitting beside him a young man whose name
does not seem to be known to any one testifying in the
case, and who was not introduced as a witness. Other
passengers, however, and indeed it is admitted by
plaintiff, say that en route plaintiff offered to this
fellow passenger a drink, and at the same time took one
himself. Plaintiff claims that his companion passenger
accepted the drink, while other passengers did not see
this, but testified that the plaintiff's offer was
refused. However this may be, within a comparatively short
while a controversy arose between the plaintiff and this
passenger and the former became so loud and boisterous in
his talk that it attracted the attention of other
passengers in the car, the language used by him, as
testified to by the witnesses, being by no means the most
elegant. As a consequence of this he changed his place in
the car, and by the time he got to Frankfort he was unable
to locate his grip, or
suit case, and, according to the proof, made no effort
either to find it or to alight from the train until after
all of the passengers had gotten off and all those desiring
to take passage had gotten on, and many, if not all of
them, had secured seats in the respective coaches. About
this time some one suggested to him that the train had
arrived at Frankfort, whereupon he began to search for his
grip, and after finding it and after he got within three or
four feet of the smoking car door going out, the train made
the usual start without any jerk, unusual or otherwise, and
by the time plaintiff got out upon the platform the train
was cleverly started, and he, over the protest of the
brakeman, and that of a Mr. Wilson, who is a citizen of
Frankfort and whose testimony is both intelligent and
convincing, undertook to jump off the car, which was then
moving at a speed of from two or three miles per hour, and
in so doing fell and thereby sustained the injuries for
which he sues.
There
is no dispute but that, at the usual place the station of
Frankfort was announced in the usual way, and no testimony
showing that the train did not stop upon this occasion the
usual time, which was about three minutes. There is
absolutely no proof that any unusual number of passengers
crowded onto the car, and there was such an utter failure to
produce evidence of any jerking start of the train that the
plaintiff himself abandons this theory by failing to offer
any instruction upon it."
Upon
the last trial plaintiff Johnson testified and called a
number of witnesses, including Homer Wise, a newsboy who
testified for the first time. The evidence of Homer Wise is
largely cumulative, since it relates to subjects fairly
covered by witnesses upon the first and second trial, but in
addition he gives an account of the jerking of the train, and
it is therefore contended that his evidence entitles the
plaintiff to go to the jury upon the question of whether the
train started with a sudden jerk, causing the injury of
plaintiff. His evidence upon this subject is as follows:
"Q.
What sort of a start did this train make? A. An unusual
quick start. Q. What did you say about what kind of a start
they made? A. A quick start. Q. What was the effect of that
start on the train itself? (Defendant objected. Sustained.)
Q. What did the train do and what did you hear, if
anything? A. It made a jerk, an unusual jerk, and I looked
around, and saw him fall off. Q. How close was his falling
off to the jerk? A. I don't know; just as soon as it
jerked he fell off. Q. Who did you see on the train, about
the steps there where he fell? A. I never saw anybody; I
never noticed. Q. Did you go back to where he was lying? A.
No, sir; there was a big crowd around there, and I
couldn't get back. Q. What attracted your attention to
the
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