Louisville and Nashville Railroad Company v. Graves' Assignee

• Court: Kentucky Court of Appeals
• Writing for the Court: Cofer
• Citation: Louisville and Nashville Railroad Company v. Graves' Assignee, 78 Ky. 74 (Ky. Ct. App. 1879)
• Decision Date: 20 September 1879
• Parties: Louisville and Nashville Railroad Company v. Graves' Assignee.

Page 74

78 Ky. 74

Louisville and Nashville Railroad Company v. Graves' Assignee.

Court of Appeals of Kentucky.

September 20, 1879.

APPEAL FROM JEFFERSON COURT OF COMMON PLEAS.

MESSRS. KLINE & McCLARTY FOR APPELLANT.

D. M. RODMAN FOR APPELLEE.

JUDGE COFER DELIVERED THE OPINION OF THE COURT.

1. The motion to strike out the amended petition was properly overruled. Counsel admit that the propriety of filing it was involved, and made a question on the last appeal, and this Court failing to notice it, was equivalent to deciding that it was properly filed.

2. The exception to the depositions of Kelly and Browning was general; went to the whole deposition; and some part of each being competent, the exception was properly overruled.

3. We do not find any order overruling appellant's objections to so much of Graves' testimony as detailed what Tracy told him, nor any exception to any ruling on this point that may have been made. All that appears is, that the appellant objected; but the objection does not appear to have been acted on, nor does it appear that the motion to exclude was acted on.

4. The testimony of Brady offered to be read from the bill of exceptions was not relevant to any issue in the case, and was properly rejected. If admitted, it could not have been of any advantage whatever to the appellant; and the same is true of that part of Graves' testimony on the first trial that was excluded.

5. The instructions given for the appellee were objected to, but no exception was taken to the action of the Court in giving them, and consequently no question as to their correctness can be made in this Court. (Sections 333, 334, Bullitt's Code.)

The real question in the case was, whether the appellant agreed to allow Graves to take up the tickets and to pay him for them, and that question was fairly presented to the jury in the instructions given for plaintiff and defendant, and there was no error in rejecting the other instructions asked by the appellants.

Treating the assignment of errors as sufficient to raise the question whether the Court did not err in refusing to grant a new trial on the ground that the verdict was against the evidence, we are still of the opinion the judgment must be affirmed.

Counsel says the evidence on the last trial was no stronger for the appellee than on the former trials, and in this we concur with him.

In the former opinions, we said the verdict was against the clear weight of the evidence, and in the first, that the evidence was so conclusive for the appellant that no verdict for the appellee could be sustained. This, counsel contends, was conclusive of the question, and that unless the evidence was stronger on the latter than on the former trial, the question is res adjudicata, and the parties and this Court are alike bound by the former opinions. His contention is, in effect, that, upon the question whether the verdict should be set aside as against the evidence, all this Court can properly do is to look into the evidence on the former trials, and compare the evidence on the last trial with it, and decide whether the evidence on the last trial was stronger for the appellee than on the former trials, and that if the conclusion is that it was not, then a new trial follows as of course.

The statement in the first opinion, that "no verdict can be sustained, upon the proof, for the appellee," is no stronger than if the language had been "the verdict cannot be sustained." The Court did not mean by the expression used to anticipate...