Payne v. Louisville Ry. Co.

• Decision Date: 04 May 1943
• Citation: 294 Ky. 160
• Parties: Payne v. Louisville Ry. Co.
• Court: Supreme Court of Kentucky

Page 160

294 Ky. 160

Payne v.Louisville Ry. Co.

Court of Appeals of Kentucky. Common Pleas Branch, Third Division.

May 4, 1943.

1. Trial. — The trial court was not authorized to accept defendant's opening statement as true in determining whether plaintiff would be able to prove facts essential to a recovery.

2. Trial. — Directing a verdict is proper where it appears from opening statement of counsel for plaintiff that plaintiff will be unable to prove facts essential to a recovery.

3. Trial. — Where it is agreed that the opening statements may be taken as evidence, the statement in behalf of defendant may be considered in determining defendant's right to a directed verdict.

4. Trial. — Where there was no stipulation that opening statement in behalf of defendant might be considered in determining defendant's right to a directed verdict, and the facts were disputed, whether trial court erred in directing verdict for defendant on opening statement of respective counsel must be determined in the light of the pleadings and opening statement of plaintiff alone.

5. Negligence. — Where specific negligence is charged, recovery may not be had upon proof of any other negligence.

6. Trial. — Where only negligence charged was that defendant so negligently operated its street car that piece of glass from window was caused to strike plaintiff in face and only negligence referred to in opening statement of counsel for plaintiff was negligence in construction or maintenance of window rendering it defective or unsafe, court properly directed verdict for defendant.

7.Appeal and Error.— Where court properly directed vedict for defendant, judgment rendered thereon would not be disturbed though court erroneously accepted as true facts stated in opening statement of counsel for defendant.

Appeal from Jefferson Circuit Court.

Fielden Woodward and Woodward, Dawson & Hobson for appellant.

Ogden, Galphin, Tarrant & Street for appellee.

Before William H. Field, Judge.

OPINION OF THE COURT BY CHIEF JUSTICE FULTON.

Affirming.

This action was filed to recover damages for injuries sustained by the appellant, William H. Payne, when two windows of a streetcar in which he was riding broke and showered him with glass.

Counsel for appellant in his opening statement to the jury stated in substance: Payne "boarded the car just as a storm or thunder shower and wind began.* * * Just as they got at or near Second and Chestnut Streets * * * two adjoining side windows on the left side of the car broke and pieces of glass from those windows struck Payne in the face."

Counsel for appellee in his opening statement admitted the correctness of the opening statement for the appellant and stated that the evidence for the appellee would establish that: the car had been inspected and found to be in good condition on the morning of the accident; immediately before the window broke the wind was blowing so strongly that trees were blown down, boxes and baskets were being blown through the air and passengers heard a noise as if something had struck the car near the windows on the left side; just as this noise was heard a truck passed near the left side of the car; right after the accident a passenger "saw a fresh mark where the paint had been scraped away, as if something had struck the side of the car at or between the two windows that were broken."

At the conclusion of the opening statements the trial court directed a verdict for the appellee.In so doing he assumed that the doctrine of res ipsa loquitur was applicable but was of the opinion that the explanation of the defendant, as contained in the opening statement of its counsel, afforded "a reasonable explanation of the occurrence."In arriving at this conclusion the court treated the opening statements as taking the place of evidence.This was unauthorized to the extent that the defendant's opening statement was accepted as true.We have approved the practice of directing a verdict where it appears from the opening statement that counsel is unable to prove facts essential to a recovery.Carter v. Aetna Life Ins. Co., 272 Ky. 392, 114 S.W. (2d) 496.And, where it is agreed that the opening statements might be taken as the evidence, the statement in behalf of the defendant may be considered in determining the right of the defendant to a directed verdict.But the record before us shows no such agreement.There is actual dispute as to facts since counsel for appellee state in their brief that the car was stopped when the windows broke, while counsel for appellant insist that the car was moving.The trial court was therefore not authorized to consider as true the opening statement of the defendant and direct a verdict for the defendant on the strength of it.We must determine...