Louisville & N.R. Co. v. Reaume

• Decision Date: 06 February 1908
• Citation: 107 S.W. 290,128 Ky. 90
• Parties: LOUISVILLE & N. R. CO. v. REAUME.
• Court: Kentucky Court of Appeals

107 S.W. 290

128 Ky. 90

LOUISVILLE & N. R. CO. v. REAUME.

Court of Appeals of Kentucky.

February 6, 1908

Appeal from Circuit Court, Kenton County.

"To be officially reported."

Action for personal injuries by Emma Reaume against the Louisville &amp Nashville Railroad Company. From a judgment for plaintiff for $10,000, defendant appeals. Reversed, with directions.

Benjamin D. Warfield and S.D. Rouse, for appellant.

John C Strother and J. P. Tarvin, for appellee.

CARROLL J.

Appellee who was a passenger on one of appellant's trains, was injured by the derailment of the train at a point near Zion station on the line of its railroad between Cincinnati and Louisville. In an action brought by her to recover damages for injuries received the jury returned a verdict in her favor for $10,000.

A number of errors alleged to have been committed by the trial court are relied on as ground for reversal; but we will not notice any of them at length, except the one relating to the amount of damages awarded. The instructions are criticised but they presented to the jury with admirable clearness the law of the case; and no error was committed in this respect. Much is also said about the misconduct of appellee's counsel in continuing to ask questions that the trial court had ruled incompetent. It is improper for counsel to persist in asking questions that the court has ruled to be incompetent; the purpose being to impress the jury with the importance of the facts that have been excluded from their consideration. When the court has sustained an objection to a question, it is the privilege of counsel to make an avowal as to what the witness would say if permitted to answer, and this avowal he has the right to have put in the record for the purpose of an appeal. But the question excluded should not be again asked the same witness in like or a different form, unless it be that the objection was made to the question, because of the form in which it was put. If this is the ground upon which the objection is based, counsel should, of course, be permitted to ask the question in proper form, so that the objection may go to the competency or relevancy of it. As an illustration of the manner in which counsel for appellee sought to get before the jury incompetent evidence, he repeatedly asked, in different forms and ways, if the railroad company had not settled or attempted to settle with other persons injured in the same wreck; and also concerning the condition of the health of appellee's father and other members of her family. A party will not be permitted by indirect means to acquaint the jury with facts which he is not allowed to bring to their notice by direct evidence. If this practice was permitted to go without criticism, or could be indulged in without suffering the penalty of reversal, the trial judge after exhausting all other means could not, unless he felt inclined to resort to contempt proceedings, prevent the mind of the jury from being prejudiced by the efforts of counsel to put before them in an indirect way evidence that was incompetent. Skilled counsel in resorting to practices of this character have in view the effect that it will produce on the jury, and their expectations are too frequently well founded, as it is difficult for a jury to escape from being impressed in some manner by the insistence with which damaging, but incompetent, evidence is offered and the objections of adverse counsel to it sustained. If a practice of this kind is persistently indulged in by counsel, although the trial judge repeatedly tried to prevent it, it would as surely be grounds for reversal as any other substantial error that a party might commit in the trial of a case. The orderly conduct of the trial, the professional and personal deportment of counsel, the examination of witnesses, and all other matters connected with the proceedings, are under the control of the trial judge, and he has ample power and authority to enforce his rulings and to prevent counsel from disobeying them. But the trial judge is often reluctant to resort to extreme measures in dealing with attorneys engaged in the trial of a case, and is content to sustain objections that are made, and let the disapproved conduct pass with this, or a slight reprimand that at times is unheeded, but this court will not permit the nonaction of the trial judge or rather his failure to take such action as may be necessary to effectually restrain counsel to prejudice the rights of one of the parties, but will take such action as to it under all the circumstances seem right and proper. The distinguished counsel who tried the case for appellee has since died. He was an able, resourceful, and zealous lawyer. His experience on the bench, where he presided with honor and dignity, well qualified him to understand and appreciate when counsel in the trial of a case were overstepping the bounds of propriety, and he must have known, as did the excellent judge before whom this case was tried, that the evidence he was trying to get before the jury was wholly irrelevant and incompetent. Except for the fact that this case on a retrial will be conducted by other counsel, and our failure to call attention to the misconduct of former counsel might leave the impression that it was not open to criticism, we would not under the circumstances direct attention to it.

On the trial a question was made as to the residence of appellee; the appellant insisting that she was a resident of the state of Ohio, and not of Kenton county, Ky. at the time she brought the action in the Kenton circuit court. Upon this point, which will probably not arise on another trial, the jury under proper instructions found that appellee was a resident of Kenton county, and there was evidence sufficient to warrant their finding in this particular.

It is not necessary to discuss the cause of the accident as the company did not offer any reason or excuse for it. It was probably due to the fact that the train was running at a high, dangerous, and reckless rate of speed on the downgrade of a road full of sharp curves.

In considering the amount of damage assessed, and for the purpose of illustrating the fact that it is excessive, it will be necessary to relate with some particularity the evidence bearing upon this question. Appellee at the time of her injury in April, 1906, was a single lady about 24 years of age. Previous to the accident she had uniformly enjoyed good health, and had been a wage earner for several years. Her occupation was that of an actress, but she had given up the continuous practice of that profession, and opened in Cincinnati a school at which she taught elocution, fencing and physical culture. There is some conflict in the evidence as to the amount of money she derived from her school; appellee placing the sum at about $1,700 a year. When injured, she was on her way to Carrollton, Ky. with a troop of players for the purpose of giving there a theatrical performance. Within a few hours after the wreck appellee and her company proceeded by another train to Carrollton, where that night they gave the promised entertainment. Appellee took the principal part in the play, which required some physical as well as mental exertion, and according to the evidence of witnesses who lived in Carrollton and were instrumental in getting up the entertainment she did not manifest any signs of injury or discomfort, but went through the performance as she would have done if nothing out of the usual had happened; and in response to questions by them said she was not hurt in the wreck. Some little time after the derailment, and while the passengers were yet at the scene of the accident, the conductor of the train went around among the passengers making inquiries about whether or not they were hurt, when the following took place between him and appellee, as testified to by her: "Q. What did he ask you, as well as you can remember? A. He asked me if I was hurt. I says, 'I don't think I am, at least no bones broken.' Q. Did any one else, any other than the conductor, then say anything to you? A. Yes, sir. Q. Who was that? A. Mr. Reed, who was seated at my side. He says, 'Why don't you tell him your back hurts?' Q. Was Mr. Reed the gentleman you spoke of yesterday? A. Yes, sir; acting manager of the theatrical troop. Q. What did you say? A. I told the conductor, 'My back hurts me so badly, and feels as though it had been wrenched or something.' Q. Was that all of the conversation that took place between you and the conductor? A. Yes, sir." The conductor testifies that he made a written memoranda of the name and address and injury received by the persons on his train; and, looking at the memoranda made at the time, there was on it the name of appellee, and the words, "not hurt," which he had written opposite her name, but afterwards, when she told him she was hurt on the back, he added the words, "hurt on back." On the following morning appellee went to Cincinnati to the...