Louisville and Nashville Railroad Company v. McCoy

• Decision Date: 06 November 1883
• Citation: 81 Ky. 403
• Parties: Louisville and Nashville Railroad Company v. McCoy.
• Court: Kentucky Court of Appeals

Page 403

81 Ky. 403

Louisville and Nashville Railroad Company v. McCoy.

Court of Appeals of Kentucky.

November 6, 1883.

APPEAL FROM JEFFERSON COURT OF COMMON PLEAS.

ISAAC CALDWELL, LYTTLETON COOKE, AND WM. LINDSAY FOR APPELLANT.

JAMES HARLAN, A. E. WILSON, KINNEY & KINNEY, AND J. T. O'NEAL FOR APPELLEE.

CHIEF JUSTICE HARGIS DELIVERED THE OPINION OF THE COURT.

In the beginning collision of counsel renders it necessary to determine what questions are, by the grounds for new trial and assignment of errors, presented to the court for its decision.

According to section 340, Civil Code, there are eight general causes for granting a new trial. Some of these causes are stated in that section with sufficient particularity to be followed specifically in the written grounds which may be filed by a party, but others are so generic that the language of the Code, if literally pursued, would not enable the court to know, with reasonable certainty, what particular error was complained of. This is especially the case with the eighth subsection, which was intended "to cover all errors to which exceptions might be taken, not embraced by some one of the preceding seven subsections." (McLain v. Dibble & Co., 13 Bush, 298.)

That case holds correctly that the language of the eighth subsection, which authorizes a new trial for "error of law occurring at the trial, and excepted to by the party making the application," was the generalization of the law-makers, and not sufficiently specific to point out the particular error which might be intended by the written grounds. That subdivision makes every error of law which may be committed, and properly excepted to during the trial, a cause for a new trial. Hence, when the cause for new trial is embraced by it, the particular ground or cause must be named in the written grounds with such a degree of certainty that a person of good understanding may know what is meant. Among other grounds for a new trial, the appellant relied upon the following:

Fifth. The court erred in law in refusing to submit to the jury the questions propounded by defendant's counsel.

Seventh. The court erred in the instructions to the jury.

These grounds are embraced by the eighth subdivision of section 340 of the Code, and, as we think, are sufficiently specific to indicate the errors of which the appellant complains. There were only three questions which appellant asked to be propounded, and only two instructions which were given by the court to the jury. The questions and instructions all relate to negligence, its degrees, character, and by whom committed, and, it seems, should be considered together in order to understand the meaning of the court below. If more particularity were required in stating grounds for new trial than the appellant has used, the courts must finally become entangled in the uncertainty which generally belongs to human expression, and as each case is presented to different judges whose minds differ in the understanding of the force or meaning of language, the rule regarding the sufficiency of grounds for new trial will be found to vary as much as their mental conceptions. This vague and misgiving state of the rule, which should be uniform and certain, as far as the subject will admit, was never contemplated by the law-makers. The object of the motion and grounds for new trial is to call the attention of the trial court to any error that may have been committed at the trial, and to allow an opportunity, without the expense and delay of an appeal, of correcting it. This being so, all that is necessary in any case is to use such plain and intelligible language in the grounds for new trial as indicates, points out, or shows to the court, with reasonable and ordinary certainty, the particular errors which are complained of, so as to enable the court, by the exercise of proper attention, to understand what errors are meant, and to reconsider the facts or law out of which they are alleged to have grown. Unreasonable particularity or technical accuracy in the description of the errors, is not required or practicable, either in the grounds for new trial or the assignment of errors.

To describe each error, with every particularity belonging to it, would swell the grounds for new trial, and the assignment of errors beyond their necessary or proper compass.

The law does not mean that the grounds for new trial shall contain a particular description of the errors relied on, but that the particular errors shall be simply pointed out or indicated in a common-sense way.

Often, and most generally, a few well chosen, substantive, or strong words referring to the subject, and the action of the court thereon, will point out or name the error or errors as well as the most lengthy description. The court could hardly fail to know what errors the appellant relied on by the grounds for new trial above quoted.

There is no objection to pointing out or designating each instruction and each question conceived to be erroneously given or refused, and this is certainly a safe course to pursue; but where the questions or instructions relate to the same general question and its various phases, it is nearly always important to take a view of the whole in order to understand the defects or omissions of any one of them, and a ground for new trial referring to them in the plural number is sufficiently specific. Where there are several issues and various questions of a different nature, then, it may be, a general reference to the instructions or questions would not be specific enough to guide the mind of the court to the supposed error. In such instances sharp practice, or an effort to embrace some error by an indefinite or too general ground, without descending to particulars, could be discovered with but little trouble, and cut off by the application of the rule in the sense we have attempted to explain it above.

The assignment of errors, however, comprehends several alleged errors, which were not alluded to in the grounds for new trial, and they will not, therefore, be considered.

But those quoted, and some other grounds which it will be necessary to mention in this opinion, are specified with ordinary and sufficient particularity, and will be examined.

This was an action brought by the appellee to recover damages of the appellant for personal injuries inflicted upon him by the alleged gross and willful neglect of its agents while he, as brakesman, was engaged, under their superior orders, in coupling the appellant's cars. The evidence bearing upon negligence, and the extent of the injury, was conflicting, and of such a nature as required the court to instruct the jury upon the degrees of ordinary gross and willful neglect, and in the law of contributory negligence.

There were but two instructions given to the jury, and they were confined to the definition of ordinary and gross neglect. As to other questions, the jury were directed to answer certain interrogatories, and in response to one of these, they fixed the appellee's compensatory damages at $7,593.50. The instructions are in this language:

First. The court instructs that ordinary care is that degree of care which an ordinarily careful and prudent man usually exercises under like or similar circumstances in taking care of himself, his family, or his property, or in the transaction of his business, when the same may endanger the safety of others.

Second. The court instructs the jury that gross negligence is that degree of negligence which indicates intentional wrong to others, or such a reckless disregard of their security or rights as to imply bad faith.

These instructions are both erroneous. Ordinary care, in its general sense, is such care as is commonly exercised by the majority of the community, or by persons of ordinarily prudent habits, placed under similar circumstances; but as the nature of the subject of the required care, whether animate or inanimate, capable of a high, low, or ordinary degree of self-preservation, or merely under the control of the person charged with the care, and the danger to which it is exposed, are the main considerations in determining ordinary or any other degree of care in a given case, it is clear that what would be ordinary care in one kind of business would be gross neglect in another. The law has a peculiar regard for human life, and as the business of conducting a railroad subjects it to extraordinary hazard, the general definition of ordinary care does not exhibit that care which the duty of those conducting railroads requires them to observe in its ordinary management. Ordinary care by them is that degree of care which a...