Madisonville, H. & E.R. Co. v. Allen

• Decision Date: 11 March 1913
• Parties: MADISONVILLE, H. & E. R. CO. v. ALLEN.
• Court: Kentucky Court of Appeals

154 S.W. 5

152 Ky. 706

MADISONVILLE, H. & E. R. CO. v. ALLEN.

Court of Appeals of Kentucky.

March 11, 1913

Appeal from Circuit Court, Muhlenberg County.

Action by W. W. Allen against the Madisonville, Hartford & Eastern Railroad Company. Judgment for plaintiff, and defendant appeals. Reversed.

Browder & Browder, of Russellville, and Benjamin D. Warfield and Charles H. Moorman, both of Louisville, for appellant.

W. J Ross and Milton Clark, both of Greenville, for appellee.

CARROLL J.

The appellee, Allen, brought this suit against the appellant company, charging in substance that in the erection of a bridge by it across Pond river, a navigable stream, it placed in the river a number of piles between the piers of the bridge, which piles extended above the water mark and obstructed the navigation of the river; that while the piles were thus obstructing navigation a large raft of logs he was floating down the river came in contact with these piles and the accumulation of drift, and as a result a number of his logs were lost, and in addition he was put to a large expense in clearing away the drift to make a passage for the logs. He asked judgment against the company for $446.75. A number of defenses were set up by the company in its answer, and upon a trial a judgment was rendered in favor of appellee for $350.

A reversal of this judgment is asked, (1) because the trial court refused to grant a continuance, and (2) for misconduct of counsel for appellee in the argument of the case before the jury.

When the case was called for trial on April 15, 1912, the appellant, by its counsel, filed an affidavit for a continuance, in which it was averred that on April 2d the case was set down for trial on April 15th, and that immediately thereafter he caused to be issued subp nas to Todd county for six witnesses who lived within 20 miles of the courthouse where the case was pending, and a subp na for four witnesses who lived in Muhlenberg county that these subp nas were placed in the hands of the sheriffs of Todd and Muhlenberg counties, but for some reason unknown were not executed on any of the witnesses.

The affidavit further averred that the witnesses were personally requested to attend, and were advised that all of their expenses, including lost time, would be paid; that only two of the ten witnesses for whom subp nas were issued were present; and that it could prove by the eight absent witnesses "that they were present at the bridge mentioned in the petition at the time plaintiff, Allen, made his run of logs under the bridge, and that that is the same time complained of in the petition when plaintiff claims to have lost the logs set up in the petition; that all of said witnesses will state, and same will be true, that the water in said river at said place was so high that same was from five to six feet higher than the top of the piles referred to in the petition, and that said piles could not and did not in any way, or to any extent, interfere with log navigation at said point, and did not in any way, or to any extent, stop said logs, or hold same back, or come in contact with them but that all of said logs passed over said piles and under said bridge without in any way being obstructed, impeded, or affected in any manner by said piles; that all of said witnesses will state, and same will be true when stated, that they were there present, and that the said plaintiff was not required to and did not expend $56.75, or any other sum, for labor in clearing out said bridge, and was not required to and did not employ any laborers or persons to do any work whatever in clearing out said bridge, for the reason, as the witnesses will state, that said channel was free and clear of any obstructions whatever; that when the plaintiff's logs were navigated down said Pond river and reached said bridge each and all of them passed under said bridge and over said piles just as rafted by the plaintiff, and without the loss of a single log."

This affidavit was accompanied by the affidavit of counsel that the just and proper effect of the evidence of the absent witnesses could not in a reasonable degree be had without a personal examination in court. The trial court refused to grant the continuance, but permitted the affidavit to be read as the deposition of the absent witnesses. The result of the ruling of the trial court was that the appellant was forced to trial with only two of its ten witnesses present, and only these two present witnesses were introduced for it.

The testimony of the absent witnesses was very material for the appellant,...