Nashville, C. & St. L. Ry. Co. v. Banks

• Decision Date: 18 February 1916
• Citation: 168 Ky. 579,182 S.W. 660
• Parties: NASHVILLE, C. & ST. L. RY. CO. v. BANKS.
• Court: Kentucky Court of Appeals

182 S.W. 660

168 Ky. 579

NASHVILLE, C. & ST. L. RY. CO. v. BANKS.

Court of Appeals of Kentucky.

February 18, 1916

Appeal from Circuit Court, McCracken County.

Action by George Banks against the Nashville, Chattanooga & St Louis Railway Company. From a judgment for plaintiff for $16,500, defendant appeals. Affirmed.

Wheeler & Hughes, of Paducah, and Claude Waller, of Nashville, Tenn for appellant.

W. Mike Oliver, of Paducah, Samuel A. Anderson, of St. Paul, Minn and Jos. R. Grogan, of Paducah, for appellee.

HURT J.

This is the second appeal to this court from a judgment of the McCracken circuit court, in favor of the appellee against the appellant. Upon the first trial of the case the appellee recovered a judgment against appellant for the sum of $20,000. Upon appeal to this court the judgment was reversed and the case remanded for another trial. The opinion upon the former appeal may be found in 156 Ky. 609, 161 S.W. 554. The facts of the case are set out in the former opinion, and it will be unnecessary to more particularly state them.

Upon the second trial of the case in the circuit court the jury returned a verdict in favor of the appellee for the sum of $16,500 in damages. The appellant's motion and grounds for a new trial being overruled, it has again appealed, and it now insists that the judgment ought to be reversed for the following reasons: First. The verdict is excessive. Second. The verdict is not sustained by sufficient evidence and is contrary to law. Third. The court erred to the prejudice of the appellant in giving instructions 1, 2, 3, 4, 5, and 6. Fourth. The court erred to the prejudice of appellant in admitting incompetent evidence. Fifth. The court was in error in proceeding with the trial of the case while a suit by the appellee against the appellant on account of the same matters in controversy in this suit, was pending in the federal court at Memphis, Tenn.

The evidence upon the last trial is substantially the same as that given upon the first trial. The evidence shows that the appellee was a stout, healthy young man, and at the time earning from $75 to $85 per month, and the negligence of which he complained resulted in the loss of both his hands. One was taken off at the wrist, and the other arm was removed just below the elbow. These injuries necessarily incapacitate the appellee from doing any kind of labor or pursuing with profit any kind of employment, and rendered him unable to even take his meals. His injuries are necessarily permanent, and from the effects of which there can be no relief during life. This statement of the facts necessarily removed, without further comment, any objection to the verdict of the jury upon the ground that it was excessive or appeared to have been caused by any passion or prejudice on the part of the jury.

As to the second and fifth grounds for reversal relied upon, they were relied upon upon the first appeal of this case, and while they were not adverted to in the opinion rendered, they were brought to the attention of the court upon that appeal. The judgment was not reversed on account of the alleged errors embraced in the second and fifth grounds for reversal mentioned, but were presented to the court upon the appeal, and must now be considered as res adjudicata, and as having been decided adversely to the appellant upon the former appeal. The rule long since established in this court is, that where the first opinion does not contain any notice of errors relied on for reversal by the appellant, if these same errors appear upon the second appeal and are relied on for reversal they will be considered as having been decided adversely to the contention of the appellant upon the first appeal. Dupoyster v. Ft. Jefferson Improvement Co., 121 Ky. 518, 89 S.W. 509, 28 Ky. Law Rep. 504; Springfield v. Louisville Railway Co., 130 Ky. 468, 113 S.W. 513; Wall's Ex'r v. Dimmitt, 141 Ky. 715, 133 S.W. 768; Stewart's Adm'r v. L. & N. R. R. Co., 136 Ky. 717, 125 S.W. 154; Illinois Life Insurance Co. v. Wortham, 119 S.W. 802; U.S. Fidelity & Guaranty Co. v. Blackley, Hurst & Co., 85 S.W. 196, 27 Ky. Law Rep. 392; Langhorn, Johnson & Co. v. Wiley, 91 S.W. 255, 28 Ky. Law Rep. 1186; Id., 115 S.W. 759.

We find no error on account of the admission of incompetent evidence upon the trial, and no error of such character is insisted upon by appellant or pointed out to the court.

Instructions 1 and 2, given by the court upon the last trial, are the same as instructions 1 and 2 given by the court upon the first trial, and are expressly approved in the opinion upon the former appeal.

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