Lexington & E. Ry. Co. v. Crawford

• Decision Date: 12 November 1913
• Citation: 155 Ky. 723,160 S.W. 267
• Parties: LEXINGTON & E. RY. CO. v. CRAWFORD.
• Court: Kentucky Court of Appeals

160 S.W. 267

155 Ky. 723

LEXINGTON & E. RY. CO. v. CRAWFORD.

Court of Appeals of Kentucky.

November 12, 1913

Appeal from Circuit Court, Lee County.

Action by Squire Crawford against the Lexington & Eastern Railway Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Sam Hurst, of Beattyville, Samuel M. Wilson, of Lexington, E. S Jouett, of Louisville, and Gourley & Gourley, of Beattyville for appellant.

J. M McDaniel, of Beattyville, and H. V. McChesney, of Frankfort, for appellee.

SETTLE J.

This is an appeal from a judgment entered upon a verdict awarding appellee $3,285 damages for injuries to his person sustained from the alleged negligent operation by appellant's servants of an engine and cars in moving them with unnecessary force upon a switch and against a car upon which appellee was engaged in loading cross-ties. The answer of appellant denied the negligence complained of, and pleaded contributory negligence on the part of appellee.

The evidence conduced to prove that appellee was, at the time of receiving his injuries, in the employ of C. B. Waller, who was engaged in the business of getting out, shipping over appellant's railroad, and selling cross-ties. The ties were, in the main, floated down the middle fork of the Kentucky river to a village called Tallega, where they were hoisted with a derrick from the river to a platform standing by the side of appellant's railroad switch. It was the business of appellee to load the ties on the cars after they had been hoisted from the water to the platform in question, and, after getting them upon the cars, to stretch strong wires over the ties to keep them from falling from the cars during their transportation to market; the wires being fastened by staples driven into the sides of the cars. While appellee was wiring the rear end of the last of eight cars loaded with cross-ties and standing on appellant's switch, a freight train, consisting of an engine and four cars, was run by appellant's servants, the crew in charge thereof, upon the switch and into the cars standing there with such violence that it threw appellee from the car upon which he was at work between same and the timbers of the derrick, causing him to be rolled several feet between the car from which he fell and the timbers of the derrick, and finally casting his body to the ground.

As to the movements of the train and resulting collision of same with the cars on the side track, there was a contrariety of evidence; that of appellee conducing to prove that the train was backed on the switch at a dangerous rate of speed, and that the collision of the train with the standing cars on the switch was unusually violent, and the jar to the standing cars was one of unusual force and suddenness. On the other hand, appellant's servants in charge of the train testified that it was moved at the usual and safe rate of speed, and that the collision between same and the standing cars on the side track was without unnecessary force or violence, and such as usually resulted from the movements of such a train under such circumstances.

It further appears from the evidence of both appellant and appellee that, before entering the side track or switch, the train in charge of appellant's servants was hid from the view of one in appellee's position by an abrupt curve in the main track and a projecting cliff, and, according to appellee's numerous witnesses, the train was moved around the curve upon the side track and against the cars standing thereon without giving any signal of its approach, either by the ringing of its bell or the sounding of its whistle. Appellee himself testified that immediately before and when the collision occurred he and his fellow workman were engaged in driving staples and making other noises common to the work of hoisting, loading, and wiring ties, and that he did not hear and was not informed of the coming of the train. He and his several witnesses also testified that it was the custom of appellant's servants, in moving its trains around the curve and on the side track, to send in advance of the train and to the entrance to the side track one of the brakemen to see that the side track was clear of obstructions, and to warn persons who might be thereon of the coming of the train, but that on the occasion in question this precaution was not observed. Appellant's servants in charge of the train did not deny the custom referred to, but did deny that they failed to observe it, testifying in that connection that they sent Williams, a brakeman, in advance of the moving train to warn appellee and his fellow workmen of its coming, and that he did so warn them. They also testified that the movements of the train in coming around the curve and entering the side track were attended by the constant and customary ringing of the bell, and that the engine whistle was sounded on the main track before the train reached the curve.

The jury evidently based their verdict upon the proof furnished by appellant's witnesses of the negligent operation of the train, and we need not pass upon the evidence further than to say that there is no ground for disturbing the verdict of the jury on the evidence.

Four grounds were relied on for a new trial, and the same are now urged for a reversal of the judgment, viz.: First, misconduct, during the trial, of one of the attorneys for appellee; second, excessiveness of the verdict; third, misconduct of a juror; and, fourth, error of the court in instructing the jury.

As to the first ground, it is sufficient to say that the misconduct, on the part of the attorney, complained of should have been prevented by the trial court; but it gives no cause for a reversal of the judgment, because it was not excepted to by the appellant when indulged in by the attorney, but was brought to the attention of the court for the first time in the motion for a new trial. The rule that prevents us from considering this contention of appellant is thus stated in section 675, Newman's Pleading and Practice (new edition): "Errors committed during a trial of a case, if relied on in the Court of Appeals as grounds for a reversal must appear in the bill of exceptions, prepared in the usual form. It is not sufficient to present such errors (e. g., improper argument to the jury) for the first time in a motion for a new trial, even though it be supported by affidavits. ***"...