L. & N.R. Co. v. Rowland's Admr.

• Decision Date: 12 February 1929
• Court: United States State Supreme Court — District of Kentucky
• Parties: Louisville & Nashville Railroad Company v. Rowland's Administrator.

227 Ky. 841

Louisville & Nashville Railroad Company v. Rowland's Administrator.

Court of Appeals of Kentucky.

Decided February 12, 1929.

1. Trial. — Case must be submitted to jury if there is any evidence tending to sustain cause of action alleged.

2. Trial. — In determining propriety of taking case from jury, facts proven and permissible inferences reasonably deducible therefrom must be accepted as true.

3. Trial. — Credibility of witness is for jury.

4. Carriers. — Where steps provided for passengers for use in entering and leaving railroad cars are so unreasonably high as to be dangerous to person attempting to use them, it constitutes negligent breach of carrier's duty.

5. Carriers. — In action against railroad for death of passenger, who fell in mounting steps of coach, evidence showing that steps were from 24 to 32 inches from ground, and that no stool was provided, held sufficient to take to jury question of defendant's negligence.

6. Carriers. — In action against railroad for death of passenger, who fell in mounting steps of coach, evidence held sufficient to take to jury question whether death was caused by injuries sustained in accident.

7. New Trial. — Although Civil Code of Practice, sec. 340, subsec. 6, authorizes granting of new trial when verdict is not sustained by sufficient evidence, court will not set aside verdict merely because preponderance or weight is on one side, or even because of numerical superiority of witnesses, but verdict can be set aside on such ground only when it is flagrantly against weight of evidence.

8. Carriers. — In action against railroad for death of passenger, who fell in mounting steps of coach, evidence held to support judgment for plaintiff, as against contention that deceased died of heart disease, and not from injuries.

9. Evidence. — Jury is not compelled to accept opinion of expert witnesses, if circumstances and other evidence furnish conflict, especially where other evidence equally credible creates conflict.

10. Evidence. — Expert evidence at most is entitled to but little weight, and, while courts are necessarily dependent on it in many circumstances, it must be received with caution and scrutinized with care.

11. Appeal and Error. — Reversible error cannot be predicated on presence of several incompetent questions in record, when trial court ruled correctly thereon, as it is only where there is persistent effort in disregard of ruling of court, for purpose of influencing jury, that new trial may be ordered on that ground.

12. Evidence. — Where testimony of family physician showed complete knowledge of subject-matter of investigation in death action, opinions as to cause of death were admissible, even if expert questions were technically inadequate.

13. Evidence. — Hypothetical questions may be based on plaintiff's proof alone, and, if defendant desires benefit of subsequent proof, it should be incorporated in proper question; it being defendant's privilege to supplement plaintiff's evidence by facts proven for defendant and obtain expert's opinion on whole.

14. Appeal and Error. — Where opinion on first appeal expressly approved instructions, such opinion constituted law of case, and, while witnesses in some respects were different on second trial, there was no room for additional instructions, where facts were in substance the same.

15. Appeal and Error. — Law of case as applied in Kentucky requires that all questions in record must be raised on first appeal, and may not be raised thereafter.

16. Trial — In action against railroad for death of passenger, who fell in mounting steps of coach, it was not necessary to instruct on supposititious conditions or situations in which defendant was not liable, where there was general instruction to find for defendant unless jury found for plaintiff on single issue submitted.

17. Death. — $12,000 held not excessive for death of woman 40 years old, who was strong, active, healthy, capable of doing and actually performing all housework, and who was skilled in fancy work, and made money from sale of handiwork.

18. Death. — In determining whether damages for death are excessive, reasons for allowance of damages and rules for measurement thereof make no distinctions because of sex.

19. Appeal and Error. — Reversals are not authorized, unless substantial rights of party have been prejudiced by errors of court.

Appeal from Lee Circuit Court.

WOODWARD, WARFIELD & HOBSON, HUNT, NORTHCUTT & BUSH, ROSE & STAMPER, CHARLES S. LANDRUM and ASHBY M. WARREN for appellant.

J.M. McDANIEL, BEATTY & BEATTY, J.K. ROBERTS and W. E. SETTLE for appellee.

OPINION OF THE COURT BY JUDGE WILLIS.

Affirming.

Martha Rowland became a passenger on a train of the Louisville & Nashville Railroad Company at Heidelberg, in Lee county, about 3 p.m., on June 10, 1924. In mounting the steps of the coach provided for passengers, she fell and sustained injuries to her knee and side, but continued on her journey to Beattyville, a distance of 6 miles, and kept an appointment with a dentist. She returned that same evening, and was assisted from the depot to her home. She was confined to her bed thereafter, and was under the care of a physician until August 4th, when she was taken to Lexington. Not being able to get the desired attention at Lexington, she was taken to the Gibson Hospital at Richmond, Ky., where she remained until August 8, 1924, when she died.

Her administrator instituted this action to recover damages for her death, alleging that she was injured as a result of the defendant's negligence, and that her death resulted from the injuries. At the first trial the plaintiff recovered a verdict for $15,000, but this court reversed the judgment and ordered a new trial. Louisville & N. R. Co. v. Rowland, 215 Ky. 663, 286 S.W. 929. A retrial resulted in a verdict and judgment for $12,000 in favor of the plaintiff. A new trial was demanded and denied, and the railroad company has prosecuted the present appeal.

It is now insisted (1) that a peremptory instruction in favor of the defendant should have been given; (2) that the verdict is not sustained by the evidence, but palpably against the weight of it; (3) that counsel for appellee misbehaved; (4) that incompetent evidence was admitted; (5) that additional instructions offered by appellant were improperly rejected; and (6) that the verdict is excessive.

1. The argument of the appellant for a peremptory instruction is grounded upon two contentions. It is first said that there was no testimony tending to prove a negligent injury, and then that the injuries sustained by Mrs. Rowland were not the proximate cause of her death. The rule is that a case must be submitted to the jury, if there is any evidence tending to sustain the cause of action alleged. In determining the propriety of taking a case from the jury, the facts proven and the permissible inferences reasonably deducible therefrom must be accepted as true. Cincinnati, N.O. & T.P.R. Co. v. Rue, 142 Ky. 694, 134 S.W. 1144, 34 L.R.A. (N.S.) 200; Hines v. Gaines, 192 Ky. 198, 232 S.W. 624; Terrell v. Southern R. Co., 225 Ky. 645, 9 S.W. (2d) 993; Slusher v. Lawson, 198 Ky. 358, 248 S.W. 888.

The uncontradicted evidence in this case tended to show that the steps provided for the use of passengers in mounting and alighting from the coaches were unreasonably high, and that because of that breach of duty on the part of the carrier Mrs. Rowland fell, and thereby sustained the injuries which ultimately ended her life. It is true that one of plaintiff's witnesses was impeached in so far as her moral character was concerned; but there was contradictory testimony, and it was proven by numerous witnesses that she was present when the accident occurred. But, in any event, the credibility of the witnesses was for the jury. Chesapeake & O.R. Co. v. Salyers, 187 Ky. 144, 218 S.W. 474; Louisville & N.R. Co. v. Quinn, 187 Ky. 607, 219 S.W. 789; Louisville & N.R. Co. v. Spicer, 187 Ky. 601, 219 S.W. 1047. It is the rule in this state that, when the steps provided for passengers to use in entering and leaving the cars are so unreasonably high as to be dangerous to a person attempting to use them, it constitutes a negligent breach of the carrier's duty. Louisville & N.R. Co. v. Dyer, 152 Ky. 264, 153 S. W. 194, 48 L.R.A. (N.S.) 816; Louisville & N.R. Co. v. Bowman, 208 Ky. 39, 270 S.W. 471. The steps involved here were shown by the evidence to be 24 inches, or perhaps 32 inches, from the ground, and no stool or other appliance was provided to obviate or alleviate the danger. It is plain, under the authorities cited, that the proof made out a case of negligence, and the court properly submitted that issue to the jury.

But appellant insists that, notwithstanding there was sufficient evidence of negligence to carry the case to the jury, there was nevertheless no sufficient evidence that Mrs. Rowland was injured as a result thereof, or that the injuries were the direct cause of her death. There was ample evidence to show that the injuries were sustained. One witness, Mrs. Poe, testified that she saw Mrs. Rowland fall on her knee and side, and heard her exclaim: "Oh, Lord! I am killed!" And further that she saw her put her hand on her side and groan, and, in response to an inquiry addressed to her, she expressed a belief that her ribs were broken. The same witness also testified that the expression on the face of Mrs. Rowland indicated pain and suffering. Miss Mary Quillen was alighting from the train, and met Mrs. Rowland and another large woman, who was identified as Mrs. Poe, entering the car. Mrs. Rowland was holding her left side about her heart, and said that she had just fallen and almost killed herself. The testimony of Miss Quillen was recited in the former opinion and its competency expressly affirmed. Mrs. Howell was with Mrs. Rowland from the time of her injury, saw her limping, decline to eat any supper because of her suffering,...