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

• Decision Date: 08 June 1917
• Citation: 176 Ky. 259,195 S.W. 417
• Parties: LOUISVILLE & N. R. CO. ET AL. v. BENKE'S ADM'R.
• Court: Kentucky Court of Appeals

195 S.W. 417

176 Ky. 259

LOUISVILLE & N. R. CO. ET AL. v. BENKE'S ADM'R.

Court of Appeals of Kentucky.

June 8, 1917

Appeal from Circuit Court, Campbell County.

Action by Elizabeth Benke's administrator against the Louisville & Nashville Railroad Company and others. Judgment for plaintiff, and defendants appeal. Reversed and remanded for new trial.

James C. Wright, of Newport, and Benjamin D. Warfield, of Louisville, for appellant Louisville & N. R. Co.

Maxwell & Ramsey, of Cincinnati, Ohio, and Matt Herold, of Newport for appellant Pittsburg, C., C. & St. L. Ry. Co.

Hazelrigg & Hazelrigg, of Frankfort, and L. J. Crawford and H. Gunkel Jr., both of Newport, for appellee.

MILLER J.

This is the second appeal in this case. Upon the first trial there was a verdict for $10,000. On the last trial there was a verdict for plaintiff for $6,000; and the defendants again appeal.

In the opinion upon the first appeal, which may be read in 164 Ky 798, 176 S.W. 212, the court examined the facts in great detail, and concluded that the defendant's motion for a directed verdict should have been sustained.

The decedent, Elizabeth Benke, lost her life while endeavoring to cross Saratoga street, at the south side of Eighth street in Newport, immediately in front of one of appellant's engines hauling a train of 15 loaded cars. When Miss Benke was struck by the engine, she was carried from the south line of Eighth street to a point about 100 feet north of the north line of Eighth street. As Eighth street is fifty feet wide, she was carried a total distance of 150 feet before falling from the engine.

Miss Lampe, the principal witness for the plaintiff, speaks of Miss Benke having been struck by the "cowcatcher." The engine was, however, a switch or yard engine, and had the usual low footboard, instead of a "cowcatcher," in front.

Upon the first trial the case was tried and submitted to the jury upon the theory that Miss Benke was killed when the car struck her on the south side of Eighth street, and that the collision, which was thus the occasion of her death, was brought about by her own negligence. That this was the theory upon which the first judgment was reversed clearly appears from the clause of the opinion, where the court, in speaking of the failure of the defendants to stop their train within 10 feet after the accident, as Foy testified could have been done, used this language:

"If the train had been stopped within the distance prescribed by the expert, it does not appear probable that the result would have been different."

This, of course, means that the case was tried below, and decided here, upon the theory that Miss Benke had been killed instantly when she was struck by the train. But upon the second trial Miss Lampe testified that after the engine had struck Miss Benke, it carried her a distance of 150 feet, as above stated, while she was alive and sitting upon the cowcatcher or footboard; that when the engine passed Miss Lampe while she was standing at the northwest corner of Eighth and Saratoga streets, Miss Benke was alive and had a terrified look upon her face; and that she fell from the cowcatcher or footboard at a point about 100 feet north of Eighth street, and was run over and ground to death by the engine. Counsel for appellants insists that the evidence upon the second trial was the same as the evidence upon the first trial, and that the jury should have been directed to return a verdict for the defendants in accordance with the views expressed in the former opinion. And in support of this contention appellants cite many cases to the effect that the opinion on the first appeal is the law of the case. The trial court, however, was of the opinion that this new testimony of Miss Lampe was sufficient to authorize the application of the "last clear chance" doctrine to the case, and that, although Miss Benke had been negligent in going in front of the engine, it was nevertheless the duty of the defendant companies and their employés to use ordinary care to protect her after they knew she had been struck by the engine, and that if they failed to do so, and her death so resulted, the defendants were liable. This theory of the case was sustained by the new testimony of Miss Lampe, to the effect that Miss Benke was not killed when she was first struck by the engine at the south line of Eighth street, but that she was killed by being run over by the engine after she fell from the cowcatcher at a point 150 feet north of the place where she was struck.

There can be no reasonable criticism of the rule invoked by the appellants; but the rule has no application where the evidence upon the second trial presented a case materially different from that passed upon by the court in its first opinion. Whenever the case presented by the proof is...