Nashville, C. & St. L. Ry. v. Byars

• Decision Date: 28 November 1933
• Citation: 252 Ky. 507,67 S.W.2d 497
• Parties: NASHVILLE, C. & ST. L. RY. v. BYARS.
• Court: Kentucky Court of Appeals

67 S.W.2d 497

252 Ky. 507

NASHVILLE, C. & ST. L. RY. v. BYARS.

Court of Appeals of Kentucky

November 28, 1933

As Extended on Denial of Rehearing Jan. 30, 1934.

Appeal from Circuit Court, Calloway County.

Action by Effie Byars against the Nashville, Chattanooga & St. Louis Railway. Judgment for plaintiff, and defendant appeals.

Affirmed.

Nunn &amp Waller, of Paducah, S. Y. Trimble, of Hopkinsville, and Coleman & Lancaster, of Murray, for appellant.

E. P Phillips and John Ryan, both of Murray, and J. C. Speight, of Mayfield, for appellee.

RATLIFF Justice.

This is an appeal from the third trial of this case. Each of the preceding trials resulted in a verdict in favor of the appellee and was appealed from to this court, and each of the verdicts and judgments reversed. The first appeal is reported in 233 Ky. 309, 25 S.W.2d 733. The second appeal is reported in 240 Ky. 500, 42 S.W.2d 719. The history and facts of the case are recited in the opinions, supra, and it will not be necessary to repeat them in this opinion.

On the first appeal the case was reversed because the verdict was flagrantly against the evidence on the question of contributory negligence, but it was held that the court properly overruled a motion for a directed verdict. In the second appeal it was held that, the evidence being substantially the same as on the first trial, the opinion on the first appeal became the law of the case. The case was again reversed on the second appeal because the verdict was flagrantly against the evidence.

The only question for consideration on this appeal is whether or not the evidence in the last trial is the same, or substantially the same, as that of the former two trials. Section 341 of the Civil Code of Practice in part says "*** Nor shall more than two new trials be granted to a party upon the ground that the verdict is not sustained by the evidence."

It is insisted by counsel for appellee that the evidence in this the third trial, is substantially different from the evidence produced for appellee in the previous trials. Without detailing the evidence, it is sufficient to say that we have carefully read the evidence and find it to be substantially the same as in the previous trials. It was held in the two former opinions that the evidence was sufficient for the jury.

In the case of Board of Internal Improvement for Lincoln County v. Moore's Adm'r, 74 S.W. 683, 685, 25 Ky. Law Rep. 15, this court, in discussing section 341 of the Civil Code of Practice, says: "As the court has no authority to decide questions of fact in a case properly triable by a jury, if there be any evidence proper to be considered by the jury, if the jury will not give way, the court must, that there may be an end of litigation."

It is argued: "The sole act of negligence relied on in this suit against both master and servant being exclusively the act of the servant, where the servant has been in this action adjudged to be blameless, to allow a recovery against the master in damages on account of the same said act is so palpably arbitrary and unreasonable as to lack due process of law and constitutes a taking of the employer's property without due process of law, an abridgment of its rights, privileges and immunities, and a denial to it of the equal protection of the laws guaranteed to it by the Constitution of the United States and by the Fourteenth Amendment thereto."

To support this position the opinions of the courts of many other jurisdictions are cited with the statement the Kentucky-Texas rule is an exception to that of the others.

In Myers' Adm'x v. Brown, 250 Ky. 64, 61 S.W.2d 1052, 1054, we reviewed this question in this language "As to some of the principles thus enunciated by Freeman, it is doubtful whether they are in accord with the authorities in this state, as, for instance, the principle he enunciates to the effect that, where the liabilities, if any, of a principal or master to a third person are purely derivative and dependent entirely on the principle of respondeat superior, a judgment on the merits in favor of the agent or servant is res judicata in favor of the principal, for we have held that, in an action against both master and servant, where the master's liability depends solely on the principle of respondeat superior, the judgment can run in favor of the servant and against the master. Thus in J. I. Case Threshing Mach. Co. et al. v. Haynes, 178 Ky. 644, 199 S.W. 786, 787, it is written: 'It is earnestly insisted that the verdict should have been set aside by the trial court upon the ground that, as the jury acquitted Reeves, the agent of the machine company through whose negligence the accident happened, they could not find a verdict of guilty against the machine company. In other words, if he was not negligent, as the jury found, neither could the...