Paducah Traction Co. v. Walker's Adm'r

• Decision Date: 27 April 1916
• Citation: 185 S.W. 119,169 Ky. 721
• Parties: PADUCAH TRACTION CO. v. WALKER'S ADM'R. PADUCAH TRACTION CO. v. WALLER'S ADM'R.
• Court: Kentucky Court of Appeals

185 S.W. 119

169 Ky. 721

PADUCAH TRACTION CO. v. WALKER'S ADM'R.

PADUCAH TRACTION CO. v. WALLER'S ADM'R.

Court of Appeals of Kentucky.

April 27, 1916

Appeal from Circuit Court, McCracken County.

Actions by Dewey Walker's Administrator and Glen Waller's Administrator against the Paducah Traction Company. From judgments for plaintiffs, defendant appeals. Judgments reversed, with directions.

Wheeler & Hughes, of Paducah, for appellant.

Berry &amp Grassham and Hazelip & Kahn, all of Paducah, for appellees.

CLARKE J.

On September 19, 1914, two negro boys, Dewey Walker and Glen Waller, each 14 years of age, were riding in the back end of a spring wagon with their feet hanging out, going north on Seventh street in the city of Paducah, when one of appellant's street cars, going west on Clark street collided with the wagon at the intersection of said streets with the result that these two boys were killed. Two other boys on the seat in the front end of the wagon escaped without injury. To recover for the death of these boys their administrators filed separate suits against appellant. Upon motion of the appellees, and over the objection of appellant, the cases were tried together, resulting in separate verdicts and judgments in favor of each of the appellees in the sum of $175. Upon motion of appellees these judgments were set aside, and new trials awarded. At the second trial the court again, upon a similar motion and objection, ordered the cases tried together, and appellees were awarded separate verdicts and judgments for $1,000 each. Appellant's motion for a new trial having been overruled, as were its motions to set aside the second judgments and substitute therefor the judgments on the first trial, it is appealing.

The following errors assigned in the motion for new trials are relied upon here for reversals: (1) That the court erred in ordering the cases to be tried together; (2) that the court erred in admitting, over appellant's objection, evidence showing the schedule fixed by the company for the street car over the route where the accident occurred; (3) that the court, after having given an instruction upon contributory negligence, erred in giving an instruction on the "last clear chance"; (4) that contributory negligence was established without contradiction, and the court erred in overruling motions for a peremptory instruction; (5) that the court set aside the first judgments of $175 each, and granted appellees new trials upon the ground that they were inadequate, and that this was error.

1. Appellant contends that, while this court is committed to the rule where there are several actions brought by different plaintiffs against one defendant, and the issues are the same in each action, the court may try them together, this rule never has been, and should not be, extended to death cases, because the shocking details of two or more deaths submitted to one jury would necessarily have a tendency to prejudice the jury and place the defendant at such a disadvantage that a fair trial would be impossible. We do not think, however, that the rule ought to be limited to any particular class of cases, but that its application ought always to rest in the sound discretion of the trial court. The rule, as stated in Benge's Adm'r v. Fouts, 163 Ky. 797, 174 S.W. 510, does this, and is as follows:

"Ordinarily, where several actions are brought by different plaintiffs against the same defendant and involving the same issues, the court may order them tried together; but where the issues in the several cases are such as must be tried by a jury, and there is objection from one of the parties, and the circumstances are such that the trial of the cases together would tend to place the objecting party in a position not occupied by his adversaries, and that would probably give the latter an undue advantage in the trial, the court should not permit them to be tried together. Whether the cases should be tried together is a matter in the discretion of the court, and such discretion will not be interfered with on appeal unless it is clearly made to appear that the discretion was abused."

The rule is approved in Reid v. Nichols, 166 Ky. 424, 179 S.W. 440, and authorities from many jurisdictions are there cited sustaining it. There is nothing in the records or verdicts in these cases indicating that the trial court abused such discretion, and we are convinced that any effort to prescribe the conditions for its application would injure rather than improve the rule.

2. Appellant's objection to the evidence showing the schedule of the street car over the route where the accident occurred is without merit. The speed of the car as it approached the crossing was a necessary element of the alleged negligence, about which the evidence is very conflicting, and the schedule time the motorman was expected to make was a relevant circumstance, although it was of but little probative value. It was nevertheless a fact directly involved in the operation of the car, and may or may not have tended to support appellees' contention that appellant was operating this car negligently. Whether or not the schedule time affected the rate of speed at the time and place of the accident was for the jury to decide. Appellant had the right, and was permitted, to show the actual speed at the time, and that the appellees argued or the jury may have believed the established schedule caused the car to be driven too rapidly at the time could not affect the admissibility of the evidence, for if the schedule prepared by such a company should, in fact, cause the motorman to disregard his duty to have his car under control at such a place, it certainly would not be argued such testimony was incompetent. Appellant cites no authority, and has advanced no convincing argument in support of its contention. We think this evidence was competent and properly admitted.

3. The instruction given which appellant insists was error is as follows:

"The court further instructs you that, although you may believe from the evidence that the driver of the wagon or vehicle mentioned to you in evidence, on the occasion complained of, was guilty of negligence as defined to you by instruction No. 3, and the plaintiff was guilty of negligence as defined to you by instruction No. 4, yet if you shall further believe from the evidence that defendant's motorman in charge of its street car discovered, or by ordinary care could have discovered, the peril in which plaintiff decedent was, in time and with reasonable safety to said car and the passengers thereon to have stopped or checked said car so as to avoid said collision, and failed to do so, then the law is for the plaintiff, and you will so find."

The objection to the instruction is that there was no evidence authorizing it. Counsel's contention is based upon the...