Schulte v. Louisville & N.R. Co.

• Decision Date: 25 March 1908
• Citation: 108 S.W. 941,128 Ky. 627
• Parties: SCHULTE v. LOUISVILLE & N. R. CO. et al.
• Court: Kentucky Court of Appeals

108 S.W. 941

128 Ky. 627

SCHULTE v. LOUISVILLE & N. R. CO. et al.

Court of Appeals of Kentucky.

March 25, 1908

Appeal from Circuit Court, Kenton County.

"To be officially reported."

Action by Clemens Schulte against the Louisville & Nashville Railroad Company and another. From a judgment for plaintiff he appeals. Affirmed.

Robt. C. Simmons, for appellant.

S.D Rouse and Benjamin D. Warfield, for appellee Louisville &amp Nashville R. R. Co. Galvin & Galvin, for appellee Cov. & Cin. Elevated R. R. Transfer & Bridge Co.

CARROLL J.

The appellant brought this suit against the Louisville &amp Nashville Railroad Company and the Covington & Cincinnati Elevated Railroad Company, averring that while his servant was driving a wagon and team of horses along Twelfth street, in the city of Covington, his horses and wagon were struck by a locomotive engine operated by the Louisville & Nashville Railroad Company at a point where the railroad crossed Twelfth street; the collision demolishing the wagon, killing one of the horses and crippling the other, and causing the loss of all the dairy products in the wagon, to his damage in the sum of $2,200. Each of the defendants filed answers traversing the averments of the petition, and the Covington & Cincinnati Elevated Railroad Company, in addition, pleaded contributory negligence on the part of Phillip Roth, the employee of appellee, who was driving the wagon. Appellant filed a reply to the answer of the Louisville & Nashville Railroad Company, but failed to file one to the answer of the Covington & Cincinnati Elevated Railroad Company. The case went to trial before a jury, and the evidence conduced to show that Roth was driving at an ordinary gait; that, when he approached the railroad tracks, the gates maintained on each side of it for the purpose of warning travelers and preventing them from crossing when a train was approaching, were up; that he did not hear any engine bell ringing or whistle blown, or receive other warning as he came near the track, and, the gates being up, he drove along, not suspecting any danger, and did not know of the approach of the train, which was running about 25 miles an hour, until his team was on the track. The railroad employeé who had charge of the gates, and whose duty it was to close or put them down, was talking to a man near by, and neglected to close the gates. The railroad track was owned by the Covington & Cincinnati Elevated Railroad Company, and the gatekeeper was its employe, but the trains of the Louisville & Nashville Railroad Company were operated over it. Upon the conclusion of the evidence for plaintiff, the Covington & Cincinnati Elevated Railroad Company asked for a peremptory instruction, upon the ground that there was no denial of the plea of contributory neglect in its answer. Thereupon the attorney for plaintiff offered to file a reply, and also to pay the costs of the trial up to that time, and to continue the case if the Covington & Cincinnati Elevated Railroad Company desired it. These motions and requests were overruled, and the jury directed to return a verdict for the Covington & Cincinnati Elevated Railroad Company. The trial proceeded against the Louisville & Nashville Railroad Company, when a verdict was returned against it for $425, the actual loss sustained by appellant being some $515, according to the evidence in his behalf, but less than this under the evidence for appellee; in short, the verdict was substantially correct. A reversal is asked, first, because the trial court failed to allow a reply to be filed; second, in declining to instruct the jury that they might award interest on the value of the property destroyed from the time of its destruction, and also refusing to give an instruction on the subject of punitive damages; third, in failing to instruct the jury that they might allow damages for the use of the horse that was injured; fourth, in failing to instruct that the Louisville & Nashville Railroad Company was responsible for the negligence of the gate watchman; and, fifth, for errors in giving instructions.

It has been frequently held that, unless the plea of contributory neglect in an answer is controverted of record or replied to, the defendant is entitled to a judgment in his behalf on the pleadings, notwithstanding the fact that the plaintiff may have obtained a verdict. L. & N. R. R. Co. v. Paynter's Adm'r, 82 S.W. 412, 26 Ky. Law Rep. 761; L. & N. R. Co. v. Copas, 95 Ky. 460, 26 S.W. 179; L. & N. R. Co. v. Mayfield, 35 S.W. 924, 18 Ky. Law. Rep. 224; Brooks v. L. & N. R. Co., 71 S.W. 507, 24 Ky. Law Rep. 1318. And, when the plaintiff rested his case in the court below, the defendant upon the pleadings as they stood was entitled to the peremptory instruction requested, if the plaintiff had not when the motion was made offered to file a reply. The trial court has a large discretion in the matter of allowing amended pleadings to be filed during the progress of a trial; and this discretion should be exercised with great liberality when the purpose of the amendment is to enable the party offering it to obtain a trial of the case upon its merits, and it is not tendered for delay or to obstruct justice. When, in the language of section 134 of the Civil Code of Practice, an amendment offered during the trial "is in furtherance of justice," and it does not appear that the substantial or meritorious rights of the adverse party will be prejudiced by its filing, but that injustice will be done if it is rejected, the court should permit it to be filed upon such terms as will insure a fair trial and protect the rights of the parties. Ford v. Providence Coal Co., 99 S.W. 609, 30 Ky. Law Rep. 608; Kearney v. City of Covington, 1 Metc. 340; Washington Mfg. & Mining Co. v. Barnett, 42 S.W. 1120, 19 Ky. Law Rep. 958. In the case before us the court should have permitted the reply to be filed requiring the plaintiff to pay the costs up to the time of the filing, and also continuing the case if the defendant desired a continuance.

In respect to the question of interest, we are of the opinion that the jury should have been instructed that, if they found for plaintiff, they might in their discretion allow him interest on the sum found as the value of the property destroyed from the date of the injury, and, as to the horse that was injured up to the time the owner was fully restored to his use and possession. Where personal property is injured or destroyed by negligent, wrongful, or unlawful acts, and the owner is thereby deprived of its use and possession, in a suit to recover damages for the loss, he is entitled to the value of the property and interest thereon in the discretion of the jury. If the recovery was limited to the value, he would receive no compensation for the deprivation of the use between the time of the injury and the trial, or the date he was restored to the use and possession if this happened before the trial, and the recovery would not be adequate recompense for the loss. This rule cannot be applied when it is sought to recover unliquidated damages, or in cases where no certain or fixed sum is claimed that may be awarded as compensation, and the jury are authorized to and may assess any amount in their discretion. In this class of cases the amount the plaintiff is entitled to recover cannot be estimated at the time of the injury, or, indeed, until there has been a verdict and judgment. And in cases where exemplary damages are recoverable and allowed, and the plaintiff gets more than compensation, he is not entitled to interest, as the interest and the exemplary damages would be in a measure double compensation. But, where personal property has been destroyed or...