Stearns Coal & Lumber Co. v. Williams

• Decision Date: 16 June 1916
• Citation: 186 S.W. 931,171 Ky. 46
• Parties: STEARNS COAL & LUMBER CO. v. WILLIAMS.
• Court: Kentucky Court of Appeals

186 S.W. 931

171 Ky. 46

STEARNS COAL & LUMBER CO. v. WILLIAMS.

Court of Appeals of Kentucky.

June 16, 1916

Appeal from Circuit Court, McCreary County.

Action by F. W. Williams against the Stearns Coal & Lumber Company. Judgment for plaintiff, and defendant appeals. Reversed.

J. N Sharp, of Knoxville, Tenn., and J. P. Hobson & Son, of Frankfort, for appellant.

J. B Snyder, of Williamsburg, Denton & Flippin, of Somerset, H. C Gillis, of Williamsburg, and James Denton, of Somerset, for appellee.

CLARKE J.

This is the second appeal of this case. For the opinion on the first appeal see Stearns Coal & Lumber Company v. Williams, 164 Ky. 618, 176 S.W. 15, where a statement of the facts as disclosed by the evidence upon that trial will be found. The reasons assigned for reversal there were that the instructions given were erroneous, and that the verdict was excessive. The reversal was ordered because of error in the instruction on the measure of damages, and the question of whether or not the verdict was excessive was expressly reserved. The appellee now claims that that opinion precludes the consideration of any other question upon this appeal except the question of excessive damages.

Appellant, again relying upon the ground that the verdict is excessive, also assigns as error the refusal of the court to give three instructions offered by it upon the second trial that were not offered upon the first. Upon the last trial, in addition to the evidence heard upon the first trial, appellant introduced the evidence of a Mr. Carter who was appellee's foreman at the time of the accident, and who did not testify upon the first trial, who stated that just before appellee, pursuant to his directions, went upon the pole where the accident occurred, he warned appellee that the wire, from which the electric light current had been turned off, still carried the motor current and instructed him to use insulated pliers while at work on the line; that appellee did not follow these instructions. It is also in evidence for the first time upon the second trial that, if appellee had used the insulated pliers, the accident would not have occurred.

1. One of the instructions offered by appellant and refused by the court, while not correct in form, authorized the jury to find for appellant if they believed this testimony. While the opinion upon the former appeal is conclusive of every question presented therein, or that should have been presented, except such as were left open by the opinion, it does not preclude the consideration of a question upon this appeal that was presented for the first time by the evidence upon the second trial. This evidence of Carter appeared for the first time on the second trial, and presents a defense that was not presented upon the previous trial, and appellant is not precluded by the former opinion from raising the question now if he was entitled to an instruction upon this new evidence not included in any of the instructions given, and the question is properly presented by the record.

2. Appellee not only contends that appellant is precluded by the former opinion from raising the question, but that the question is not properly presented by the record. In the bill of evidence three instructions are copied which are therein stated to have been offered by appellant and refused, and to have been the only instructions offered by it. These three instructions are identified in the bill of evidence by numerals, 1, 2, and 3. In the motion for a new trial one of the grounds assigned is that the court erred in refusing to give the instructions offered by appellant, but referred to in the grounds for a new trial by letter, instead of numerals, as in the bill of evidence. Appellee insists that this is not a sufficient identification of the instructions to bring the question before us upon appeal, but we do not think the fact that the instructions offered and refused are referred to in the bill of evidence by numerals, and in the motion and grounds for a new trial by letters is material, since it clearly appears that one of the grounds relied upon in the motion for a new trial was the refusal of the court to give the instructions offered by the appellant, and the instructions that were offered and refused are identified by the bill of evidence.

Neither the reference by numerals or letters was necessary. It is not necessary in the motion and grounds for a new trial to describe particularly the errors relied upon, but it is sufficient if the particular errors relied upon are therein called to the attention of the court for consideration. L. & N. R. Co. v. McCoy, 81 Ky. 403; Meaux v. Meaux, 81 Ky. 479; Helfrich Saw & Planing Mill Co. v. Everly, 32 S.W. 750, 17 Ky. Law Rep. 795.

3. While the rule is now thoroughly established in this state to give instructions presenting in specific and concrete form each party's theory of the case (L. & N. R. Co. v King's Adm'r, 131 Ky. 347,...