Louisville & N.R. Co. v. Shaw's Adm'r

• Decision Date: 28 November 1899
• Citation: 53 S.W. 1048
• Parties: LOUISVILLE & N. R. CO. v. SHAW'S ADM'R. [1]
• Court: Kentucky Court of Appeals

53 S.W. 1048

LOUISVILLE & N. R. CO. v. SHAW'S ADM'R. ^[1]

Court of Appeals of Kentucky.

November 28, 1899

Appeal from circuit court, Larue county.

"Not to be officially reported."

Action by Charles Shaw's administrator against the Louisville &amp Nashville Railroad Company to recover damages for the death of plaintiff's intestate. Judgment for plaintiff, and defendant appeals. Affirmed.

W. H Marriott, H. W. Bruce, and Edward W. Hines, for appellant.

J. W Twyman, McCandless & James, and J. P. Hobson, for appellee.

GUFFY J.

This action was instituted in the Larue circuit court by the appellee against the appellant to recover for the death of Charlie Shaw. It is substantially alleged in the petition that on or about January 4, 1896, in said county, defendant, its agents and servants, wrongfully, recklessly, and negligently kicked and knocked Charlie Shaw off one of its passenger trains while running at the rate of about 25 miles per hour, whereby said Shaw was greatly bruised and injured, and by reason of which he died thereafter, in Hardin county, on or about January 6, 1896; that the death of said Shaw resulted from injury which was inflicted by the negligence and recklessness of the defendant, its agents and servants; that said negligence was gross. Judgment in the sum of $10,000 was asked. The answer of appellant is a denial of all the averments of the petition upon which a right to recover is based or shown. A jury trial resulted in a judgment and verdict in favor of the appellee for $4,500. Upon the return of the verdict of the jury the appellant moved the court to enter judgment for it notwithstanding the verdict, which motion was overruled. Appellant's motion for a new trial having been overruled, it prosecutes this appeal.

The grounds relied on for a new trial are, in substance: Error of the court in the admission and rejection of evidence. Error in giving instructions to the jury and in failing to properly instruct the jury; in refusing to give the jury peremptory instructions to find for the defendant. The verdict is not sustained by sufficient evidence and is contrary to law. The verdict is excessive, appearing to have been given under the influence of passion or prejudice. Error in the assessment of the amount of recovery, it being too large. Accident and surprise which ordinary prudence could not guard against.

It is earnestly insisted for appellant that the statements of decedent as to the cause of his injury should not have been admitted. Bradley, who testified as to the said statements, stated that, in about four or five minutes after the train passed his house, he found decedent, apparently in great suffering, near the railroad track, and that in response to Bradley's question he said that he had been kicked off the train. We have been referred to many decisions by appellant which it is claimed sustain its contention that this testimony ought to have been rejected, and we have also been referred to many authorities by appellee which it is claimed sustain his contention that the evidence was properly admitted. It is true that Bradley appears to have made some statements, even in his testimony, that might appear to contradict the first-named statement. But, after a careful consideration of the authorities and all the testimony bearing upon the question, we are of opinion that the statements of deceased were practically part of the res gestæ, and therefore admissible.

Appellant also insists that the exception to the deposition of Flanders ought to have been sustained, because Flanders resided within 20 miles of the...