Maysville & B.S.R. Co. v. McCabe's Adm'x

• Decision Date: 01 March 1907
• Citation: 100 S.W. 219
• Parties: MAYSVILLE & B. S. R. CO. ET AL. v. MCCABE'S ADM'X.
• Court: Kentucky Court of Appeals

100 S.W. 219

MAYSVILLE & B. S. R. CO. ET AL. v. MCCABE'S ADM'X.

Court of Appeals of Kentucky.

March 1, 1907

Appeal from Circuit Court, Mason County.

"Not to be officially reported."

Action by Peter McCabe's administratrix against the Maysville &amp Big Sandy Railroad Company and others. From a judgment in favor of plaintiff, defendants appeal. Affirmed.

Worthington & Cochran and W. H. Wadsworth, for appellants.

A. D Cole, for appellee.

BARKER J.

This is the third appeal of this case. After it was instituted, the defendants filed a petition under the federal statute to remove it to the federal court, on the ground of diversity of citizenship, and this motion was sustained by the circuit court. From the order of transfer the plaintiff appealed, and the judgment was reversed, and the cause sent back for trial. The opinion on the first appeal is to be found in 66 S.W 1054, 23 Ky. Law Rep. 2328. Upon the return of the case, a trial was had on the merits, with the result that at the close of all the testimony a motion for a peremptory instruction to the jury to find in defendants' favor was sustained. From this judgment the plaintiff prosecuted a second appeal, and it was reversed for reasons given in an opinion to be found in 89 S.W. 683, 28 Ky. Law Rep. 536. Upon the return of the case to the circuit court for proceedings consistent with the opinion, a trial was again had on the merits, with the result that the jury returned a verdict in favor of the plaintiff (appellee) for $2,500, and from the judgment based upon this verdict the defendants (appellants) appeal. The full statement of the facts in the former opinion on the merits renders it unnecessary that we should give a detailed statement of them here.

The appellants now insist that the facts elicited upon the last trial were substantially different from those shown on the preceding one, and that they were entitled to a peremptory instruction to the jury to find for them. To this conclusion we cannot agree. A careful reading of the evidence adduced on both trials convinces us that, if there was any difference in appellants' right to a peremptory instruction on the trials had on the merits, it was in favor of the first rather than the last. In other words, the evidence in favor of the right of plaintiff to submit her case to the jury, if there was any difference, was stronger upon the last trial than upon the one which preceded it. Having decided on the preceding appeal that the evidence adduced in favor of the plaintiff entitled her to go to the jury, this question (the facts being substantially the same) is settled for the purposes of this appeal, and we cannot therefore enter into a discussion now as to whether or not that conclusion was right or wrong.

Before the second trial, appellants pleaded the transfer of the case to the federal court and its exclusive jurisdiction to try the issues between them and the plaintiff in bar of a further prosecution of the case in the state court. This plea was held bad by the trial court, and the ruling was correct. The question was necessarily involved on the appeal from the order of transfer, for, if the state court lost its jurisdiction of ...