Payne v. Bowman's Adm'x

• Decision Date: 22 June 1923
• Citation: 252 S.W. 1010,200 Ky. 171
• Parties: PAYNE, AGENT, v. BOWMAN'S ADM'X.
• Court: Kentucky Court of Appeals

252 S.W. 1010

200 Ky. 171

PAYNE, AGENT, v. BOWMAN'S ADM'X.

Court of Appeals of Kentucky.

June 22, 1923

Appeal from Circuit Court, Boyle County.

Action by Susan Bowman's Administratrix against John Barton Payne, as Agent. Judgment for plaintiff, and defendant appeals. Affirmed.

B. D Warfield, of Louisville, John W. Rawlings, of Danville, and Ashby M. Warren, of Louisville, for appellant.

Puryear & Clay, of Danville, for appellee.

SETTLE J.

Miss Susan Bowman, a young woman 27 years of age, at 2 p. m., on January 6, 1920, while riding alone in an automobile was struck by a locomotive and instantly killed at the crossing of the Louisville & Nashville Railroad and Main street in Shelby City, Ky.; the locomotive being owned by the Louisville & Nashville Railroad Company and by it operated under the direction of John Barton Payne, Agent of the President of the United States. This action was brought by her administratrix against appellant to recover for the loss of her life. On the trial in the circuit court, there was a verdict and judgment in favor of the plaintiff for $14,000. The defendant was refused a new trial and has appealed.

The appellant's first complaint is that the trial court erred in not sustaining his motion to strike from the petition certain indicated parts thereof; and also in overruling his general demurrer to the petition. We think the demurrer to the petition was properly overruled. Negligence may be alleged generally. It was unnecessary to set out in the petition the acts constituting negligence in the operation of the locomotive or in the maintenance of the crossing. It is unnecessary to determine whether the motion to strike from the petition was properly or improperly overruled; for on the trial the court excluded all evidence on these matters of which appellant has any ground of complaint, and the effect of this action, taken as a whole, was to sustain the motion of appellant to strike out these allegations.

A more serious objection is that to alleged misconduct of appellee's counsel in asking questions that had once been ruled out by the court. But some allowance must be made for the fact that in the progress of a jury trial, where there is little time for deliberation, things will be said and done that would be omitted on second thought. Besides, much that occurs on a trial is not included in the transcript of evidence, or is not seen in its true light when all that occurred is not before this court. So the rule is that a new trial will not be granted on this ground, unless there was a clear abuse of the privilege of counsel, preventing a fair trial of the case.

The main ground of complaint as to this matter is that when appellee had offered one witness to prove a fact and the court had sustained appellant's objection to the question, appellee introduced two or three other witnesses and asked each of them the same question and made the same avowal. But counsel had the right to put his case in the record, so that, in the event of an appeal, he would not stand on the testimony of one witness alone. This is a common practice, and, taking the record as a whole, we do not see that there was any intentional effort of counsel to go beyond what he had a right to do.

Many objections are made to the ruling of the court in the admission of evidence. It would unduly extend this opinion to set them out. On the whole case we do not see that there was any error to the prejudice of appellant's substantial rights in this respect.

The fact that the crossing was especially dangerous because the view of a train from the south as well as from the north was obstructed was properly admitted in evidence, for all the facts surrounding the decedent at the time of the accident were properly to be considered in determining whether she used due care. She had to watch on both sides for a train and the difficulty or facility of doing this was proper to be shown. The evidence also went to show that especial precautions on the part of those operating trains were necessary at a crossing which was admitted to be used by the public continuously, with the view thus obstructed on both sides.

The court did not, as insisted for the appellant, err in refusing to instruct the jury peremptorily to find for the defendant. Such an instruction was unauthorized, as the court could not as a matter of law, appearing from the plaintiff's evidence, say the decedent's death resulted solely from her contributory negligence. There was evidence warranting the jury in finding that while...