Vincennes Bridge Co. v. Poulos

• Citation: 234 Ky. 243,27 S.W.2d 952
• Parties: VINCENNES BRIDGE CO. et al. v. POULOS.
• Decision Date: 06 May 1930
• Court: Court of Appeals of Kentucky

27 S.W.2d 952

234 Ky. 243

VINCENNES BRIDGE CO. et al. v. POULOS.

Court of Appeals of Kentucky

May 6, 1930

Appeal from Circuit Court, Perry County.

Action by Anastasia Poulos against the Vincennes Bridge Company and others. Judgment for plaintiff, and defendants appeal.

Affirmed.

J. W Craft, of Hazard, and Seymour Riddle, of Vincennes, Ind., for appellants.

W. A Stanfill, of Hazard, for appellee.

WILLIS J.

The Vincennes Bridge Company had a contract to reconstruct the highway bridge in Hazard, Ky. The abutment on the northerly side of the river was in close proximity to a four-story brick building owned by Anastasia Poulos. The building was seventy-two feet long, abutting on the bridge. In order to perform its contract, the bridge company was compelled to remove portions of the old piers, which required considerable blasting with high explosives. An action was instituted by Mrs. Poulos against the bridge company and its foreman to recover damages for injuries to her building and to her business carried on in the building, which was caused, as she averred, by the blasting operations. She recovered substantial damages, but an appeal to this court resulted in a reversal of the judgment. Vincennes Bridge Co. v Poulos, 228 Ky. 446, 15 S.W.2d 271. The reversal was rested upon the refusal of the trial court to grant a continuance requested by the bridge company. It was held however, that certain testimony should not be admitted on another trial, and that there was no merit in the criticism of the instructions given, or in the contention that a peremptory instruction was improperly refused. Upon return of the case to the circuit court it was again tried, resulting in a verdict in favor of the plaintiff for $6,000, of which $5,000 was for damages to the building, and $1,000 for damage to the business. The bridge company again appeals insisting that it was entitled to a peremptory instruction, that the verdict was flagrantly against the evidence, that incompetent evidence was admitted, and that offered instructions were improperly rejected.

It is argued that the judgment of the court on the previous appeal, respecting the request for a peremptory instruction, is not conclusive on the present record because of a material difference in the evidence adduced upon the two trials. The witnesses on the last trial were not exactly the same ones introduced at the first trial, but the substance and effect of the testimony is the same. In the former opinion the court referred to the testimony of an engineer and architect, respecting the sagging of a girder resting on the center pier of the building. That witness was not introduced, but there was other testimony to the same effect. At least two witnesses testified that the center pier of the building had subsided some several inches. Indeed, it was the contention of the defendant that the sole cause of the injury to the building was the subsidence of the center pier caused by its insufficient strength. It is said that a flood in May, 1927, had carried considerable mud into the building and greatly overloaded the support, thus causing the subsidence. The evidence for the plaintiff, however, tended to show that the sagging was caused by the vibration of the building as a result of the blasting. The new witnesses introduced did not testify to different facts, or describe a different situation. The facts proven by the engineer were produced through other witnesses, tending to induce the same conclusion of fact that must have been derived from his testimony at the former trial. The "law of the case" doctrine prevails, unless the facts are materially different, and it is not affected by the fact that different or additional witnesses may be introduced. L. & N. R. Co. v. Rowland, 227 Ky. 841, 14 S.W.2d 174. Apart from this consideration, it is quite apparent from the record that there was abundant evidence to sustain the plaintiff's theory of the case and to require its submission to the jury.

The evidence for the defendant tended to show that the blasting did no harm to the building, except the breaking of some plate glass windows, which had been repaired by it. It also tended to show that the other damage to the building was caused by faulty construction and the effect of the May flood. Proceeding upon the hypothesis that the evidence produced two theories to account for the injury, one of which would fasten liability upon the defendants, whilst the other would exonerate them, it is argued that a peremptory instruction should have been given for the defendants. L. & N. R. Co. v. Guest, 106 S.W. 817, 32 Ky. Law Rep. 670; Cochran v. Krause, 144 Ky. 202, 137 S.W. 1053; McDonald v. Louisville Car Wheel & Supply Co., 149 Ky. 801, 149 S.W. 1142. But the argument is predicated and proceeds upon a misapprehension of the facts, and a misapplication of the law. It has been held in a long line of negligence cases that where the plaintiff's own evidence fails to show with reasonable certainty the cause of the injury, but supports with equal plausibility an inference of negligence and an inference of innocence, the presumption favors the latter, and entitles the defendant to a peremptory instruction. John R. Coppin Co. v. Richards, 191 Ky. 720, 231 S.W. 229; Louisville Gas Co. v. Kaufman & Co., 105 Ky. 131, 48 S.W. 434, 20 Ky. Law Rep. 1069; Johnson v. M. & O. R. Co., 178 Ky. 113, 198 S.W. 538; Hearell v. I. C. R. Co., 185 Ky. 41, 213 S.W. 561; L. & N. R. Co. v. Payne's Adm'r, 177 Ky. 465, 197 S.W. 928, L. R. A. 1918C, 376; Bingham v. Continental Casualty Co., 219 Ky. 501, 293 S.W. 968; Gregory's Adm'x v. Director General, 195 Ky. 293, 242 S.W. 373; Bingham v. Lexington & E. Ry. Co., 185 Ky. 48, 213 S.W. 204; C. & O. R. Co. v. Rogers, 193 Ky. 578, 237 S.W. 18. The reason for the rule is that negligence will not be presumed, and, if the plaintiff's own evidence is equally consistent with the existence or nonexistence of negligence, the presumption prevails in favor of innocent rather than of wrongful conduct. But that rule has no application when the conflicting theories do not arise from the plaintiff's evidence, but the one indicating no negligence is deduced from the evidence introduced by the defendant. Sims v. C. & O. Ry. Co., 140 Ky. 241, 130 S.W. 1081; Caledonian Ins. Co. v. Naifeh, 229 Ky. 293, 16 S.W.2d 1046; Lack Malleable Iron Co. v. Graham, 147 Ky. 161, 143 S.W. 1016. The distinction is a substantial one based upon fundamental principles, and, while it is not always noted with precision in the opinions referring thereto, it is invariably maintained in the decisions applying it. The question presented in cases of this character is one of conflict in the evidence, the solution of which depends upon which theory is found by the jury to be the true one. The jury is not permitted to speculate or guess away the defendant's rights, but it is charged with the responsibility of finding whether the plaintiff's theory or his adversary's defense is established by the evidence. Aetna Life Ins. Co. v. Milward, 118 Ky. 721, 82 S.W. 364, 26 Ky. Law. Rep. 589, 68 L. R. A. 285, 4 Ann. Cas. 1092.

It is insisted that the verdict of the jury is flagrantly against the...