Owensboro & H. Gravel-Road Co. v. Coons

• Decision Date: 08 March 1899
• Citation: 49 S.W. 966
• Parties: OWENSBORO & H. GRAVEL-ROAD CO. v. COONS. [1]
• Court: Kentucky Court of Appeals

49 S.W. 966

OWENSBORO & H. GRAVEL-ROAD CO. v. COONS. ^[1]

Court of Appeals of Kentucky.

March 8, 1899

Appeal from circuit court, Daviess county.

"Not to be officially reported."

Action by M. H. Coons against the Owensboro & Henderson Gravel-Road Company to recover damages for the loss of services of plaintiff's wife, and for injury to property, resulting from the negligence of defendant. Judgment for plaintiff, and defendant appeals. Affirmed.

Walker & Slack and R. A. Miller, for appellant.

Robert S. Todd and Geo. W. Jolly, for appellee.

GUFFY J.

The appellee instituted this action in the Daviess circuit court against the appellant to recover damages for the negligence of the defendant, whereby his wife, horse, and buggy were injured by the negligence and carelessness of appellant in the obstruction of its road. The demurrers and motions to strike out filed by the appellant were finally overruled to the petition as amended. The substance of the answer is a denial of all negligence, together with the plea of contributory negligence upon the part of plaintiff's wife and daughter, coupled with the further plea that the obstruction complained of by plaintiff consisted in a pole put across the road by defendant, many years prior to the injury, as a tollgate, at which place defendant had erected and maintained a tollgate for the purpose--as it had a right to do--of collecting toll upon its said road. The reply may be treated as a traverse of contributory negligence, together with the further plea that the custom and usual habit of appellant was to abandon the tollgate, and leave the pole raised during the night, from and after about half past 8 o'clock. After the issues were made up, a jury trial resulted in a verdict in favor of plaintiff for $137.70 being $16.25 for loss of services of wife, $105 for loss of mare, and $16.45 for damage to buggy and harness. Appellant's motion for a new trial having been overruled it prosecutes this appeal. The appellee also obtained a cross appeal, but only desires the same to be passed upon in the event that the original appeal should be sustained.

The grounds relied on for a new trial are, in substance, as follows: (1) The court erred in overruling the demurrer to the petition as amended. (2) Error of the court in overruling the motion to require plaintiff to elect which cause of action he would prosecute. (3) In allowing plaintiff to file amended petition No. 4. (4) Error of the court in allowing irrelevant and incompetent evidence to be introduced. (5) Error in the...