Louisville & N.R. Co. v. Woodford

• Decision Date: 21 February 1913
• Citation: Louisville & N.R. Co. v. Woodford, 153 S.W. 722, 152 Ky. 398 (Ky. Ct. App. 1913)
• Parties: LOUISVILLE & N. R. CO. v. WOODFORD et al.
• Court: Kentucky Court of Appeals

153 S.W. 722

152 Ky. 398

LOUISVILLE & N. R. CO. v. WOODFORD et al.

Court of Appeals of Kentucky.

February 21, 1913

Appeal from Circuit Court, Fayette County.

Action by Catesby Woodford and another against the Louisville &amp Nashville Railroad Company. Judgment for plaintiffs, and defendant appeals. Affirmed.

R. A Thornton, of Lexington, and Benjamin D. Warfield and Charles H. Moorman, both of Louisville, for appellant.

Robert B. Franklin, of Frankfort, and Robert C. Talbott, of Lexington, for appellees.

MILLER J.

On November 17, 1910, the appellant, the Louisville & Nashville Railroad Company, received from the appellees. Catesby Woodford and John T. Ireland, seven thoroughbred horses, at Lexington, Ky. for shipment and transportation to Juarez Mexico. The petition alleges that the plaintiffs, in order to afford the necessary light in the car which contained the horses, equipped said car with two suitable lanterns in the manner usual and customary in the shipment of horses over railroads, by hanging, swinging, wiring, and anchoring said lanterns in said car securely and safely; that when the car reached appellant's freight yards at West Frankfort, Ky. about midnight, appellant's agents, employés, and servants negligently and carelessly struck, crashed, and jambed the car containing said horses against its engine and other cars, with such force and violence that it tore down one of said lanterns while lighted, and thereby set fire to the car and its contents, resulting in the death of three of said horses and serious injury to the other four. On January 6, 1911, the appellees filed this action against the appellant in the Fayette circuit court for damages, laying their loss at $25,225, for which they prayed judgment. The trial resulted in a verdict for the plaintiffs for $15,000, and from a judgment upon that verdict the defendant prosecutes this appeal.

The company assigns three grounds for a reversal: (1) The damages are excessive; (2) the verdict is not supported by the evidence, which, it is claimed, shows no negligence upon the part of appellant's agents or servants, but, on the contrary, that the injuries were received by reason of the contributory negligence upon the part of appellees' servants; and (3) the instructions given by the court do not embrace the full law of the case.

As these are the only errors assigned in appellant's "Points and Authorities" to its original brief filed herein on August 31, 1912, the other errors alleged in the grounds for a new trial will be treated as having been abandoned. We will consider the questions raised in the order given.

1. The values fixed upon the horses by the plaintiff Woodford are as follows: Star Shoot colt out of Last Cherry, $7,500. Star Shoot colt out of Blue Danube, $7,500. Miller filly out of Lady Beth, $2,500. Ethelbert filly out of Miss Wicks, $1,500. Jack Point colt out of Lady Vincent, $1,500. Star Shoot colt out of Amy Davenport, $4,000.

The appellees introduced eight witnesses as to the value of the Star Shoot colt out of Last Cherry, the average of their valuations being $7,468.75: eight witnesses as to the value of the Star Shoot colt out of Blue Danube, the average of their valuations being $7,468.75; eight witnesses as to the value of the Star Shoot colt out of Blue Danube, the average of their valuations being $7,687.50; five witnesses as to the value of the Miller filly out of Lady Beth, the average of their valuations being $1,800; four witnesses as to the injury to the Miller filly out of Lade Premier, the average loss being $937.50; five witnesses as to the injury to the Ethelbert filly out of Miss Wicks, the average estimated loss being $830; three witnesses as to the injury to the Jack Point colt out of Lady Vincent, the average loss being $758.33; and six witnesses as to the injury to the Star Shoot colt out of Amy Davenport, the average loss being $2,750. A recapitulation of the average values as given by these witnesses shows the total valuation of the horses killed to be $16,956.25, and $5,275.83 loss on the horses that were injured, making a total loss upon the killed and injured of $22,232.08, when all the valuations are taken into consideration. Under the evidence there can be no doubt that these horses were as finely bred as any race horses in America, and there can be no doubt that the witnesses who testified as to their value are all experts in their line and unexcelled as judges of horse values. The appellant introduced no witness upon the subject of values; but it insists that the facts, which it brought out on cross-examination, that at a public sale in New York in August, 1910, two Star Shoot colts sold for $1,600 each, an Ethelbert filly sold for $100, and another Star Shoot colt sold for $600, shows conclusively that the valuations given by appellees' witnesses are not only wholly speculative and unwarranted, but are contradicted by these actual sales. Appellees claim to have meet this argument, however, by showing that at the time of this collision in November, 1910, which was immediately after the gubernatorial election in New York, the price of race horses advanced materially by reason of the prospect of the speedy resumption of racing in New York; and that by August of that year, when the sales cited by appellant were made, there had been a slump in the horse market. Furthermore, appellant shows that Mr. Woodford had a sale upon his farm in 1911 of other colts of the same breed, and that at that sale they brought much lower prices than the values fixed by the witnesses in this case. The witnesses as to values gave their reasons at great length, and took into consideration every element that properly could be considered in fixing these values. It would be both unnecessary and unprofitable to review those reasons at length, in the face of the well-established rule in this state that when the evidence is contradictory this court will not disturb the finding of a jury upon the ground that the verdict is against the evidence, unless it be palpably and flagrantly so, or clearly shows that the jury were mistaken, or were influenced by passion, prejudice, or corruption. Casky v. January, Hardin, 539; Hughes v. McGee, 1 A. K. Marsh. 28; Empire Coal & Mining Co. v. McIntosh, 82 Ky. 560; L. & N. R. R. Co. v. Mitchell, 87 Ky. 327, 8 S.W. 706, 10 Ky. Law Rep. 211; L. & N. R. R. Co. v. Ballard, 88 Ky. 159, 10 S.W. 429, 10 Ky. Law Rep. 735, 2 L.R.A. 694; L. & N. R. R. Co. v. Cottongim, 119 S.W. 752; Cox's Adm'r v. L. & N. R. R. Co., 137 Ky. 397, 125 S.W. 1056; Louisville Ry. Co. v. Bryant, 142 Ky. 163, 134 S.W. 182; Lexington Canning Co. v. Thomas, 50 S.W. 993, 21 Ky. Law Rep. 36.

As was said in L. & N. R. R. Co. v. Mitchell, 87 Ky. 337, 8 S.W. 709, 10 Ky. Law Rep. 211: "The amount allowed seems large. It is so. The fact, however, that it appears high to us, does not authorize a reversal. We are not acting as a jury, and it is only when it is glaringly excessive, and appears at first blush to have resulted from a passion or prejudice, that we can interfere. The power should be sparingly exercised, and only in extreme cases. This is the policy of the law, and reasonably and necessarily so."

Under this thoroughly established rule, we do not feel at liberty to disturb the finding of the jury. Furthermore, in view of the fact that the verdict is a compromise of the values as fixed by the witnesses upon that subject, it would seem that the evidence sustains the verdict, rather than discredits it.

2. There were two lanterns in the car, suspended from the ceiling, and wired to the sides. The purpose of these lanterns was to give light for the attendants in charge of the horses. Appellees show that these lanterns were placed in the car in the usual manner, and were securely wired so as to prevent accidents from the jarring of moving cars, while appellant insists that the lanterns were wired in such a way as not to make them safe. Upon this subject the evidence is contradictory; but, as that question was fairly submitted to the jury as one of the elements they were to consider in finding their verdict, it will not be disturbed, since there was evidence upon either side of the proposition.

The same may be said as to the counter-charge that Frakes and Moore, the two employés of the appellees who were accompanying the horses, were guilty of contributory negligence in bringing about the accident, by accidentally setting fire to the car while smoking. The testimony upon that subject was quite contradictory; there being testimony upon either side of the proposition, the weight of it, however, being with the appellees. In presenting the law of the case, the court gave the following instructions:

"(1) If the jury believe from the evidence that the plaintiffs, at the time and on the occasion mentioned, shipped from Lexington, Ky. the head of horses in question, consigned to Jno. T. Ireland, Juarez, Mexico, by a contract of shipment previously made between the plaintiffs and defendant company, and that at West Frankfort, Ky. a station or yard on defendant's line of railway, and while in charge of defendant for transportation, under said contract, the defendant railroad company, or its agents, or servants, or employés struck or bumped the car in which plaintiffs' horses were being hauled against its engine or other cars in a negligent manner, and that the said negligence, if any, on the part of the defendant, caused one of the lanterns used by the plaintiffs or those in attendance to set fire to the contents of said car, and to injure the plaintiffs' horses, or any of them, they should find for the plaintiffs, unless they should believe from the evidence that the plaintiffs, or the attendants in charge of said horses, Chester Frakes and

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