Toner's Adm'r v. South Covington & Cincinnati St. Ry. Co.

• Decision Date: 27 September 1900
• Citation: 58 S.W. 439,109 Ky. 41
• Parties: TONER'S ADM'R v. SOUTH COVINGTON & C. ST. RY. CO. [1]
• Court: Kentucky Court of Appeals

58 S.W. 439

109 Ky. 41

TONER'S ADM'R v. SOUTH COVINGTON & C. ST. RY. CO. ^[1]

Court of Appeals of Kentucky.

September 27, 1900

Appeal from circuit court, Kenton county.

"To be officially reported."

Action by George Toner's administrator against the South Covington & Cincinnati Street-Railway Company to recover damages for the death of plaintiff's intestate. Judgment for defendant, and plaintiff appeals. Affirmed.

Wm Goebel, for appellant.

C. B Simrall and John Galvin, for appellee.

HOBSON J.

Appellant filed this suit to recover of appellee damages for the loss of the life of his intestate, who was his son, and about 4 years old. The proof shows that the child was taken by his mother on the 14th of December to look at a Christmas tree on Tenth street, in Covington. The proof for appellant showed that the mother left the child to look for another, and when she returned he had gone from the place where she had put him, and returned to look at the Christmas tree. As she approached, he started across the street to her, and, the car approaching, ran down the track until he was caught and killed. The proof for appellee showed that the child came out from the sidewalk just in front of the car, and too close to it to be saved. The jury to whom the case was submitted after one jury had failed to agree, found a verdict for the defendant.

It is insisted for the appellee that the bill of exceptions was not filed in time, and cannot be considered. The motion for a new trial was overruled on February 15, 1897, and an appeal was then granted. On April 12th the plaintiff tendered his bill of exceptions. This was in time, as the court was one of continuous session, and 60 days had not elapsed. The bill of exceptions was not signed and filed until December 31st. It is insisted that the bill of exceptions, though tendered in time, was not then complete, and that it was afterwards perfected or substantially a new bill made. There is nothing in the record to overcome the presumption of regularity in the proceeding of the court below. The plaintiff, having tendered his bill of exceptions in time, should not be affected by the delay of the court in signing it, nor by the fact, if true, that corrections were made in the bill as offered before it was signed. The question suggested could only be raised in this court by having the record show the facts. This the record before us does not do.

The principal ground of objection by appellant to the verdict is that the court improperly instructed the jury. The instruction complained of is as follows: "If the jury shall believe from the evidence that the mother accompanied and was in charge of the child, and negligently permitted it to go upon the track when the car was approaching, or when by the exercise of ordinary care and watchfulness, she could have known that the car was approaching, and but for the negligence of the mother in permitting the child to go upon the track the injury of it could not have happened, the jury should find for the defendant." "Although the jury may find from the evidence that the mother of the child was guilty of negligence in permitting the child to go upon the track, yet if the injury of the child could have been avoided by the motorman after he knew, or could, by the exercise of ordinary care, have known, that there was reasonable ground to believe that the child would go upon the track, then the jury must find for the plaintiff." It has often been held by this court that an appellant cannot ordinarily complain of an instruction given on the trial if it is substantially the same as one asked by himself. Appellee insists that appellant is for this reason precluded from complaining of...