Louisville & N.R. Co. v. Payne

• Decision Date: 28 April 1909
• Parties: LOUISVILLE & N. R. CO. v. PAYNE.
• Court: Kentucky Court of Appeals

118 S.W. 352

LOUISVILLE & N. R. CO. v. PAYNE.

Court of Appeals of Kentucky.

April 28, 1909

Appeal from Circuit Court, Marion County.

"To be officially reported."

Action by T. L. Payne against the Louisville & Nashville Railroad Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Benjamin D. Warfield, William C. McChord, and William W. Spalding, for appellant.

Hugh P Cooper, for appellee.

LASSING J.

This is the second appeal of this case. The opinion on the former appeal is found in 104 S.W. 752. As the facts are fully stated in that opinion, they are not restated here. Upon the return of the case a trial was had, which resulted in a verdict for $1,000 in favor of the plaintiff, and to reverse the judgment predicated on that verdict, this appeal is prosecuted.

Four grounds are relied upon for reversal: First, that the verdict is flagrantly against the evidence; second, that the court erred in admitting incompetent evidence; third, because of misconduct of plaintiff's counsel; and, fourth, for errors in instructing the jury.

We will consider these questions in their natural order. The incompetent evidence complained of as prejudicial is this Plaintiff was permitted to prove, over the objection of defendant, the extent of its freight business, which was conducted at its freight depot on the south side of the main track; also that the local agent and his assistants had an office at the freight depot, where the freight business of defendant company was transacted. The evident purpose of this testimony was to establish in the plaintiff a right to alight from the train on that side rather than on the north side of the track, or rather to excuse him from being negligent in so doing. Plaintiff was a passenger, and, so far as the record shows, had no business to transact at the freight office, and no occasion to go there, for it does not appear that he knew of the existence of the freight depot on that side of the track. It was about 10 o'clock at night when the train reached the station, and the freight depot was then closed. The approach of the train to the depot had been properly announced, and the way from the train to the platform was lighted by the brakeman, who had a lantern to light the way if additional light was needed. This evidence did not tend in the least to throw any light upon the manner in which plaintiff was injured, and could serve no purpose other than to confuse the minds of the jury.

Again plaintiff introduced, over the objection of the defendant, evidence as to what lights were maintained at the depot. It is unquestionably the duty of the railroad company to keep its depot platform and approaches thereto properly lighted, so as to afford passengers an opportunity to pass safely to and from the train; and a failure to have the platform and the approaches thereto lighted would render the company liable in damages to one injured as a direct result of such neglect. But the negligence complained of and relied upon in this case was the sudden starting of the train; and, having specified the particular act of negligence relied upon, plaintiff cannot recover by showing other acts of negligence. No claim is made in the pleadings that the platform was not sufficiently lighted, or because of insufficient lights plaintiff could not see where or how to go, but the sole ground relied upon is that the train started with a sudden jerk, and threw him to the ground and under the wheels, to his injury. This evidence, not bearing upon the issue made by the pleadings, was incompetent, and should not have been admitted, and this is especially true as to the evidence of the witness Hagan, who testified that he did not come to Lebanon until in the spring of 1906, and, of course, could know nothing of the way and extent to which the platform was lighted in the summer of 1905, when the accident occurred. He knew nothing of how the platform was lighted at the time of the injury, and could not testify upon this point even if this character of testimony was permissible. All incompetent evidence is not prejudicial to such an extent as to warrant a reversal; but, where the ground relied upon for a recovery is the commission of a negligent act in one respect, it is prejudicial to permit evidence tending to establish another and different negligent act to go to the jury, for the jury would no doubt receive the evidence tending to establish the latter act as having some important bearing upon the act of negligence charged, and hence such evidence would be prejudicial.

The misconduct of counsel complained of in this case was the repeated asking of incompetent questions over the objection...