Lexington & E. Ry. Co. v. Sexton

• Decision Date: 09 December 1921
• Citation: 235 S.W. 773,193 Ky. 201
• Parties: LEXINGTON & E. RY. CO. v. SEXTON.
• Court: Kentucky Court of Appeals

235 S.W. 773

193 Ky. 201

LEXINGTON & E. RY. CO. v. SEXTON.

Court of Appeals of Kentucky.

December 9, 1921

Appeal from Circuit Court, Breathitt County.

Action by Edna Robinson Sexton, by her statutory guardian, against the Lexington & Eastern Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

B. D Warfield, of Louisville, O. H. Pollard, of Jackson, and Samuel M. Wilson, of Lexington, for appellant.

J. M McDaniel, of Beattyville, and Hobson & Hobson and Hazelrigg &amp Hazelrigg, all of Frankfort, for appellee.

THOMAS J.

This is the second appeal of this case and is the third verdict returned in favor of plaintiff. Upon the first trial there was a verdict in her favor of $250, which was set aside by consent of parties; a second trial resulted in a hung jury, and upon the third one plaintiff recovered a judgment for $5,000, which was reversed on appeal to this court in an opinion reported in 186 Ky. 739, 216 S.W. 86. After the return of the case there was another verdict for plaintiff for the sum of $1,800, and, defendant's motion for a new trial having been overruled, it prosecutes this appeal.

Many alleged errors are relied on for a reversal of the judgment appealed from, but the former opinion forecloses our right to consider many of them, under the "law of the case" rule. This court gives a broader application to that rule than do courts of some other jurisdictions. We have uniformly extended it so as to bar on a second appeal, not only all questions that were actually determined on the first one, but likewise all questions which were involved in the first record or which could have been presented under the record therein, though unnoticed and though no reference was made thereto in the first opinion. If, however, the first opinion showed expressly on its face that the matters relied on subsequent thereto were not considered or determined, they will be left open and not affected by the rule. Langhorn, Johnson & Co. v. Wiley, 115 S.W. 759; Wall's Ex'r v. Dimmitt, 141 Ky. 715, 133 S.W. 768; Harcourt & Co. v. Redmon, 149 Ky. 612, 149 S.W. 938; Wheeler v. C., N. O. & T. P. Ry. Co., 171 Ky. 436, 188 S.W. 462; Bates v. City of Monticello, 173 Ky. 244, 190 S.W. 1074; New Bell Jellico Coal Co. v. Sowders, 162 Ky. 443, 172 S.W. 914; Louisville Ry. Co. v. Osborne, 171 Ky. 348, 188 S.W. 419; Borderland Coal Co. v. Kerns, 171 Ky. 626, 188 S.W. 783; Chreste v. Louisville Railway Co., 173 Ky. 486, 191 S.W. 265; Consolidation Coal Co. v. Moore, 179 Ky. 293, 200 S.W. 458; and Schrodt's Executor v. Schrodt, 189 Ky. 457, 225 S.W. 151. Of course, the rule applies only where the issues are the same and, when questions of evidence are involved, where the evidence is substantially the same, and, as stated, it does not apply where the court in the former opinion expressly declined to pass upon the question.

Applying the rule to this appeal, the alleged errors in giving and refusing instructions cannot be considered by us, although we should conclude they possessed merit, for the same instructions were offered, given, and refused at the trial which was under review in the former opinion and the same errors were relied on then as now. The same is true with reference to some alleged erroneous testimony, which for the same reason we are without authority to consider.

The sole ground for reversing the judgment on the former appeal was thus stated in the opinion:

"The evidence in behalf of appellee is anything but satisfactory, yet sufficient to take the case to the jury. However, the verdict is not only against the weight of the evidence but the amount awarded is so excessive that for both reasons a reversal must be ordered."

The opinion then proceeds with a brief resumé of the testimony heard upon the trial as relating to the extent of injury to plaintiff's eye and whether or not it was permanent, and from the evidence we concluded that the size of the verdict ($5,000) indicated that it was based upon a permanent injury, and that the weight of the evidence was to the contrary, and the verdict was therefore excessive.

At the next trial, in which the judgment appealed from was rendered, some additional evidence was heard upon that issue from witnesses introduced by both plaintiff and defendant; and whether that additional testimony was sufficient to remove the grounds upon which the former judgment was reversed is one of the questions presented for our determination on this appeal. Another one is whether the court erred in refusing to require plaintiff to execute bond for cost under the facts presented, and, if so, whether defendant is entitled to a reversal therefor.

The trial reviewed on the first appeal was had nearly three years after plaintiff received her injury, and the negligence relied on, as well as the condition of her eye up to the time of that trial, will be found briefly stated in our former opinion referred to, and none of the testimony relating thereto will be repeated in this opinion. The trial which we are called upon to review on this appeal occurred about three years and nine months after that trial, and the testimony upon the whole shows no improvement in plaintiff's eye, but, if anything, it has grown steadily worse; and some of the additional six medical experts heard upon the last trial say that, according to their opinion, the affliction of her eye is permanent. We are convinced that the testimony upon the whole is sufficient to show that the cinder which flew into plaintiff's eye did not lodge or penetrate its cornea, but lodged in the inner lining of her under left eyelid, called by the physicians conjunctiva, and that the inflammation of that lining, which has continued since the cinder got in the eye, produced the conjunctivitis with which the eye has been afflicted, according to the testimony, continuously since that time. There is some evidence that she is also suffering from blepharitis, which is an inflammation as well as thickening of the margin of the underlid of her left eye. At least three of the newly...