Lexington St. Ry. v. Strader

• Decision Date: 11 October 1905
• Citation: 89 S.W. 158
• Parties: LEXINGTON ST. RY. v. STRADER. SAME v. McKENNA.
• Court: Kentucky Court of Appeals

89 S.W. 158

LEXINGTON ST. RY. v. STRADER.

SAME v. McKENNA.

Court of Appeals of Kentucky.

October 11, 1905

Appeals from Circuit Court, Fayette County.

"Not to be officially reported."

Separate actions by W. P. Strader against the Lexington Street Railway and by Charles McKenna against the same defendant. From a judgment for both plaintiffs, defendant appeals. Reversed.

Morton Webb & Wilson and Stoll & Bush, for appellant.

Allen &amp Duncan, for appellees.

BARKER J.

W. P Strader and Charles McKenna were injured in a collision which occurred between one of appellant's cars and a vehicle which they were driving, to recover damages for which they instituted actions in the Fayette circuit court, alleging the collision and the resulting injury to them to have been caused by the negligence of the employés of appellant in charge of the car. The answer placed in issue the allegation of negligence of appellant's employés and alleged the contributory negligence of appellees. These affirmative allegations were denied by reply, and the issues thus made up. The cases were tried together, and resulted in a verict in favor of Strader for the sum of $500, and in favor of McKenna for the sum of $350. To reverse the judgments based upon these verdicts, the corporation is here on appeal. As the facts in the cases were identical, by agreement one bill of exceptions is used on both, and we will consider the two appeals together.

Strader and his employé, McKenna, had driven along Main street, in Lexington, Ky. to a warehouse belonging to the former and which was being prepared for the storage of whisky. The vehicle they were driving seems to have been what is commonly called a "jersey," or grocery wagon, having a covered top. Strader alighted from the wagon and went into the warehouse for the purpose of supervising or looking after the repairs being made therein. During this time, McKenna sat in the wagon awaiting his return. After finishing his business in the warehouse Strader returned to the wagon which McKenna proceeded to turn around in order to go back up Main street, from whence they came. To do this it was necessary to cross the track of the appellant corporation. While the wagon was on the track, one of the cars of the appellant was propelled along, collided with the wagon, and turned it over, throwing both of the occupants out, who, by falling on the hard pavement, were seriously and painfully, but not permanently, injured. The wagon and mule were both damaged.

No serious contention is made that the verdicts are excessive. We think they show, on the contrary, a careful conservatism on the part of the jury.

Without making a more extended preliminary statement of the facts, we will take up the questions of law upon which appellant relies for a reversal. When the trial was had, the motorman, Goodman, who was in charge of appellant's car at the time of the accident, had left its service and was residing in Cincinnati, Ohio, where his deposition was taken prior to the trial. While appellees' evidence was being adduced, they both, and one or two of their witnesses, testified that immediately after the accident Goodman came from his car to where appellees had fallen, and there stated to them, or in their presence, that the reason he had not sounded his gong or stopped the car before the accident was because the gong and brake of the car were both out of repair. This testimony was allowed as a part of the res gestæ over the objection of appellant, whereupon it filed the affidavit of its president, stating that it was surprised at the evidence; that it had no knowledge that such evidence was to be introduced, and that, when the deposition of its former motorman, Goodman, had been taken in Cincinnati, no question was asked on cross-examination to indicate that appellee would rely on such testimony; that, if information had been conveyed to appellant that such evidence would be adduced, it could have shown by Goodman that he made no such statement as was testified to by appellees and their witnesses. Based upon this affidavit, a motion was made to discharge the jury and reassign the case to another day for trial, in order that appellant might have the opportunity to rebut the testimony as to the admission of Goodman in question. This motion the court overruled, and of this ruling appellant now complains. We think the trial court erred in overruling appellant's motion to discharge the jury and continue the case for another day in order to give appellant an opportunity to rebut, if it could, the testimony of the witnesses for appellees as to the admission of the motorman, Goodman.

In the case of McCall v. Hitchcock, 9 Bush, 66, it is said "It is a general principle of practice that 'when a party or his counsel are taken by surprise, whether by fraud or accident, on a material point or circumstance which could not reasonably have been anticipated, and when want of skill, care, or attention cannot be justly imputed, and injustice has been done, a new trial will be granted."' The case of Louisville &...