Palmer Transfer Co. v. Paducah Ry. & Light Co.

• Decision Date: 21 November 1905
• Citation: Palmer Transfer Co. v. Paducah Ry. & Light Co., 89 S.W. 515 (Ky. Ct. App. 1905)
• Parties: PALMER TRANSFER CO. v. PADUCAH RY. & LIGHT CO. et al.
• Court: Kentucky Court of Appeals

89 S.W. 515

PALMER TRANSFER CO. v. PADUCAH RY. & LIGHT CO. et al.

Court of Appeals of Kentucky.

November 21, 1905

Appeal from Circuit Court, McCracken County.

"Not to be officially reported."

Action by the Palmer Transfer Company and others against the Paducah Railway & Light Company and the Paducah City Railway Company. From a judgment for defendants, plaintiff transfer company appeals. Reversed.

Hendrick & Miller, for appellant.

Reed &amp Berry, for appellees.

SETTLE J.

This action was brought in the lower court by appellant, Palmer Transfer Company, a partnership, and the several partners composing the firm, against appellees, Paducah Railway &amp Light Company and its successor, Paducah City Railway Company, to recover $300 in damages for the breaking of its carriage by collision with one of appellee's electric street cars in the city of Paducah, alleged to have been caused by the negligence of appellee's servants in charge of the car. The appellees filed separate answers, each of which contained the usual traverse and plea of contributory negligence, and in addition the averments that appellees are distinct corporations and the Paducah City Railway Company was not in existence at the time of the accident complained of. The answers were controverted by the replies filed and upon the trial the jury found for appellees; the verdict in favor of appellee Paducah City Railway Company being in obedience to a peremptory instruction from the court directing the jury to so find. A new trial was refused appellant. Hence this appeal.

We think the peremptory instruction as to the Paducah City Railway Company was proper, for according to the evidence that company had no corporate existence at the time of the injury to appellant's carriage.

The testimony as to the accident was conflicting, that of appellant tending to show that it was caused by the negligence of the motorman in charge of the car of appellee Paducah Railway & Light Company, while the testimony introduced in its behalf conduced to prove that it resulted from the negligence of the driver of appellant's carriage. The issue of fact was for the jury to determine under proper instructions from the court.

It is however, contended for appellant, that the jury were not properly instructed, and in this we concur. We think instruction No. 2 was improper. It told the jury that if they believed, from the evidence, that the appellee negligently ran its car into...