L. & N.R. Co. v. Scarbrough

• Decision Date: 20 March 1925
• Parties: Louisville & Nashville Railroad Company v. Scarbrough.
• Court: United States State Supreme Court — District of Kentucky

208 Ky. 79

Louisville & Nashville Railroad Company v. Scarbrough.

Court of Appeals of Kentucky.

Decided March 20, 1925.

1. Appeal and Error — Finding, Based on Conflicting Evidence, Not Disturbed. — Finding for plaintiff based on conflicting evidence will not be disturbed, although numerical weight of witnesses be with defendant; it being question for jury to say which story to believe.

2. New Trial — Allowed where Affidavit as to Absent Witness' Testimony was Knowingly False. — In action against carrier for personal injuries caused while alighting from train, where plaintiff admitted defendant's affidavit as to what testimony of absent witness would be, discovery after verdict for defendant that witness would not have testified as claimed, and that he had told claim agent of defendant carrier so, held ground for new trial, as being fraud and misconduct within Civil Code of Practice, sections 340, 518.

3. New Trial — Second Motion for New Trial Allowed More than Three Days After Verdict. — Although more than three days had elapsed after verdict for defendant carrier, and first motion for new trial had been denied, second motion held properly allowed, where plaintiff presented new grounds as soon as discovered; authority being properly inferred from Civil Code of Practice, sections 342, 344, 518.

4. Appeal and Error — Error in Admission of Evidence Not Considered in Absence of Objection Below. — In absence of objection below, error in admission of evidence, claimed not proper under pleading, will not be considered.

5. Trial — Instruction, Following Allegations of Petition, Not Open to Objection. — In action for personal injuries, instruction as to elements of damages following allegations of petition held not open to objection merely because proof, unobjected to, may have disclosed injuries not alleged.

6. Carriers — Carrier had Duty to Assist Passenger to Alight. — Where train on a dark night passed beyond platform where passengers usually alight, where there was a steep embankment which could not well be seen, carrier had duty to assist passenger to alight.

7. Carriers — Carrier has Duty of Only Ordinary Care to Keep Depots and Premises Reasonably Safe. — Carrier of passengers is chargeable only with ordinary care to keep its premises and depots in reasonably safe condition and reasonably well lighted for use of people coming there to board trains or leave trains after arrival.

8. Carriers — Carrier has Duty of Highest Degree of Care for Passengers. — Carrier owes its passengers highest degree of care while in transit, which status continues until safely alighted, or at least given opportunity to safely alight from train.

9. Trial — Refusal to Give Requested Instruction, where Substance was covered by those Given, Not Error. — Refusal to give requested instruction outlining theory of defense held not error, where substance thereof was covered by instructions given.

10. Damages — $1,000.00 Not Excessive for Injuries to Woman from Falling Down Railroad Embankment. — In action for injuries caused woman by falling down railroad embankment on alighting from train at night, $1,000.00 held not excessive, where it was shown she suffered a miscarriage as result of accident.

Appeal from Lee Circuit Court.

ROSE & STAMPER, HUNT, NORTHCUTT & BUSH and WOODWARD, WARFIELD & DAWSON for appellant.

J. MOTT McDANIEL for appellee.

OPINION OF THE COURT BY JUDGE DIETZMAN.

Affirming.

Late in the evening of July 22, 1922, appellee became a passenger at Typo, Kentucky, on one of appellant's trains. She was bound for Lock 13, a flag station at which no depot was maintained but only a platform of cinders and screenings. She arrived at her destination shortly after midnight. In this suit she claims that the train on which she was a passenger ran some 200 or 300 yards beyond the station platform; that as she started through the car to alight from the front platform she was directed by the conductor to turn back and get off from the back platform; that although she called his attention to the fact that there was no light for her to see by or any stool to assist her in alighting he paid no attention to her, and that as she stepped from the train she fell down a steep incline beside which the train had stopped, so injuring herself that she thereafter suffered a miscarriage. The conductor denied the statements of the appellee and testified that the train stopped at the regular platform, that appellee, assisted by the flagman, alighted in safety and never fell as she stated. He was corroborated by the witness, Gross, and circumstantially by other testimony. Although the numerical weight of the witnesses was with the appellant, yet it was for the jury to say which story it believed, and we cannot disturb on this score its finding for appellee.

There were two trials in this case. On the first trial appellant announced "not ready" when the case was called, due to the absence of a material witness, Luke Spicer, its flagman on the train from which appellee claimed she fell. Being required to file an affidavit as to what Spicer would testify, appellant, through its chief agent in Lee county, swore that Spicer if present would say:

"He was flagman upon the train upon which plaintiff claims she was riding and which she was leaving at the time she claims to have been injured; that he was at the steps with a lighted lantern and assisted all passengers to alight from said train who did alight from said train at said place; that plaintiff did not fall from said train, nor did she fall at any time while attempting to alight therefrom, nor at any time before said train left said station; that said train stopped at the regular station platform and all passengers from said train alighted at said platform and that said train did not stop beyond said platform."

Appellee admitted the affidavit, and the case proceeded to trial, resulting in a verdict for the present appellant. Appellee in due course filed her motion and grounds for a new trial, which were overruled. Thereafter, during the same term at which this case was tried, but more than three days after the verdict of the jury had been rendered, appellee filed a motion to set aside the order overruling her motion for a new trial and to be permitted to file additional grounds for such new trial. These additional grounds were that Spicer, if present in court, would not have testified as appellant swore he would. In addition to the appropriate affidavit showing due diligence in the discovery of this matter and in the presentation of it to the court, appellee also filed this affidavit of Spicer:

"Affiant, Luke Spicer, says that he does not know a thing about Florence Scarbrough getting off the night train going toward Ravenna about one p.m. on the night of July 22, 1922, or any other time, and did not see her get off or get hurt and told the claim agent, Earl Rice, this, and affiant says that he was not hiding last week but duly got released from service from the L. & N. official at Ravenna and got a pass for Lexington, for a few days, and told them where he was going, and affiant says that he never told anyone whomsoever that he was standing near or saw Mrs. Scarbrough get off the train, nor led them to so believe, but told all he knew nothing about the case."

The trial court set down for hearing appellee's motion and had Spicer before him for oral examination. This examination appears in the record and, in substance, discloses that Spicer did not know a thing about the accident; if it happened he did not see it; if appellee was a passenger he did not remember — all of which he told one Earl Rice, appellant's claim agent who investigated this accident for appellant. Earl Rice was not produced to deny this statement. After hearing Spicer orally the court sustained appellee's motion, set aside the order overruling appellee's prior motion for a new trial, and on the additional grounds filed granted appellee the new trial asked for.

On the second trial, the evidence being similar to that of the first, with the exception of that of Spicer who, produced by appellant, again testified as above...