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they believed from the evidence that on, it was competent to show that the language November 3, 1913, in the presence and hear was uttered in the course of such a speech, ing of some other person, defendant, William that the parties were opposing candidates, Deitchman, falsely and maliciously spoke of and also (if defendant so desired) to prove and concerning plaintiff, the language above statements made by plaintiff concerning deset forth, “thereby meaning that the plaintiff fendant at that meeting, although statements had committed the crime of robbery,” the made by him at other times or on other ocjury should find for plaintiff. Defendant ob-casions were not competent. jected to this instruction, and asked the [6] 4. Another ground urged is that the court to give an instruction defining the trial court erred in sustaining the objection crime of "robbery" as used in the instructions to a question asked by him on cross-examinagiven. This request the court denied, and tion of one of appellee's witnesses as follows: of this ruling appellant complains.

Q. You were a follower of Mr. Bowles in The case of Beams v. Beams, supra, is di- that campaign?” The ruling was right. It rectly in point, and conclusive upon the con- was competent, of course, to show that the tention here presented. In that case the state of feeling between the witness and apword "stole” was complained of. After not- pellee was friendly, but not by way of quesing that the word has an actionable and a tions like the one propounded. nonactionable sense, and that the plaintiff [7] 5. Finally, appellant complains of the could not recover if the word was used col- ruling of the trial court in permitting appelloquially, but could recover if it was used lee to show that his reputation for honesty in its actionable sense, that is, "meaning was good, no attack upon his character, eithereby to charge the plaintiff with having ther by a plea of justification or by evidence, committed the crime of larceny,” the court having been made by appellant upon the held that the trial court should have told the trial. This has been said to be "one of the jury what constitutes larceny, and should most controverted questions in the whole have instructed them that, unless the words law.” 1 Wigmore on Evidence, $$ 70–76. spoken by defendant were intended to charge This writer also says: the plaintiff with the crime of larceny, and "The better rule seems to be that his reputawould be naturally so understood by the per- tion is assumed to be good, and that he has sons who heard them, the verdict should be therefore no need to sustain it until it has been

attacked.” for the defendant. In the instant case, as the plaintiff may re- is difficult to determine which is the pre

Chamberlayne on Evidence, $ 3284, says it cover only in the event the word "rob" was used in its actionable sense (no special dam- vailing doctrine in regard to the admissibiliages being shown), the court, in order that ty of evidence of the plaintiff's good characthe jury might intelligently determine wheth-| ter, especially where there is no plea of juser the language complained of was used and

tification. The same uncertainty in respect was understood by its hearers in its action to the course of decision and weight of auable sense, should have told the jury what

thority is expressed in the following works: is required to constitute the crime of robbery, Evidence, 274; Newell on Slander and Libel,

1 Greenleaf on Evidence, $ 55; 8 Ency. of and that, unless they believed from the evi

§ 933; 25 Cyc. 507. dence that the defendant, in using the lan

We have been able to find but one reported guage complained of, intended to charge plaintiff with the crime of robbery, as in the case in this state where the question seems

to have been directly presented. In Williams instructions defined, or that the language used was reasonably calculated to cause the v. Greenwade, 3 Dana, 432, an action of slan

der, the defendant tendered the general issue, persons who heard it to so understand it, a common-law plea under which the defendthey should find for the defendant. For this error in the instructions defendant ant was not permitted to prove the truth of

the defamatory words. The court said: is entitled to a new trial.

"And, as injury to character is the gravamen [4] 2. Appellant also complains that the of slander, goodness of character may be proved trial court erred in limiting the number of in aggravation as badness may be proved in witnesses permitted to be introduced by each mitigation of damages in an action of slander." side; but, as the bill of exceptions does not Under the authority of this case, we hold show that any such ruling was made by the that plaintiff may introduce in chief evidence court, the complaint cannot be considered of good character, although there be no plea upon appeal.

of justification or any evidence offered by de[5] 3. It is further contended by appel- fendant attacking plaintiff's character; but, lant that the trial court erred in refusing to the same being competent only for the purpermit him to show that the language com- pose of increasing the damages, the jury plained of was uttered in the course of a hot- should be admonished that such evidence may ly contested campaign in which appellant and be considered only as bearing upon that quesappellee were opposing candidates for the tion. office of trustee of the village of Highland For the errors indicated, the judgment is Park and in response to attacks which had reversed for further proceedings consistent Ky.)

BEALL V. LOUISVILLE HOME TELEPHONE CO.

251

5. TELEGRAPHS AND TELEPHONES 20%INBEALL V. LOUISVILLE HOME TELE- JURIES FROM MAINTENANCE-PLEADING AND PHONE CO.

PROOF.

Under such facts, there is no variance beLOUISVILLE HOME TELEPHONE CO. v. tween the evidence and the allegation that deBEALL.

fendant was negligent “in placing and thereaft

er maintaining such stob in the forks of the (Court of Appeals of Kentucky. Oct. 21, 1915.) tree." 1. APPEAL AND ERROR O 982

[Ed. Note.-For other cases, see Telegraphs

EXCESSIVE DAMAGES-VERDICT SET ASIDE-DISCRETION.

and Telephones, Cent. Dig. § 13; Dec. Dig.

On 20.] Where the action of the trial court in setting aside a verdict as excessive is questioned 6. TELEGRAPHS AND TELEPHONES C 20 on appeal, the decision will depend on whether

NEGLIGENT CONSTRUCTION-INJURIES-Exthere has been an abuse of discretion, and not

CUSES-ORDERS OF THIRD PERSON. upon the opinion of the appellate court as to

The court did not err in rejecting evidence whether the damages are excessive.

offered by defendant that the owner of the land [Ed. Note. For other cases, see Appeal and let to the tree, since obedience to such limita

and tree limited the means of fastening the bilError, Cent. Dig. 88 3877–3879; Dec. Dig. Om tion could not excuse defendant in risking an 982.]

insecure fastening. 2. NEW TRIAL' Om76-GROUNDS-EXCESSIVE [Ed. Note.--For other cases, see Telegraphs VERDICT-ABUSE OF DISCRETION.

and Telephones, Cent. Dig. $ 13; Dec. Dig. Om Where, in an action against a telephone 20.] company for personal injuries, there was no evidence that the injuries though severe and pain

Appeal from Circuit Court, Jefferson Counful, were permanent, there was no abuse of ty, Common Pleas Branch, Second Division. discretion in setting aside a verdict for $12,

Action by John M. Beall against the Louis000 as excessive.

ville Home Telephone Company. Judgment [Ed. Note. For other cases, see New Trial, for the plaintiff, and defendant appeals, and Cent. Dig. 88 153–156; Dec. Dig. On 76.]

plaintiff files a cross-appeal.

Affirmed on 3. DAMAGES O 132 - PERSONAL INJURY both appeals. EXCESSIVE DAMAGES.

Plaintiff was injured while riding on a Sheild, Campbell & McAtee and Bruce & railroad train by being struck by a large bil. Bullitt, all of Louisville, for appellant. W. let of wood attached to the end of a loose tele- Pratt Dale and Edwards, Ogden & Peak, all phone wire, being knocked out of his seat on to his back in the aisle and cut in numerous of Louisville, for appellee. places by flying glass. His left leg was so injured as to aggravate a varicose vein, requir

NUNN, J. On May 9, 1913, appellee Beall ing the subsequent removal of the entire vein,

He and he was injured in the spine so as to cause was the victim of a peculiar accident. pain intermittently for months after the acci- was a passenger on a Louisville & Nashville dent, so that upon every effort to resume work railroad train, leaving Louisville at 5 p. m. time of injury he was earning $7,300 a year, and bound for Cincinnati. He was seated in Held, that a verdict for $7,250 was not exces- a Pullman chair car, the rear car, and as sive.

the train was passing the reservoir of the [Ed. Note.-For other cases, see Damages, Louisville Water Company, a ventilator on Cent. Dig. $$ 372–385, 396; Dec. Dig. Cum 132.] top of the Pullman came in contact with a 4. TELEGRAPHS AND TELEPHONES Om20_IN- telephone guy wire, which had been strung

JURIES FROM MAINTENANCE-RES IPSA LO- across the track by employés of appellant QUITUR.

telephone company about three hours before. While plaintiff was a passenger on a train and seated in a Pullman car at the rear of the The wire was tied to a round wooden stob train, a ventilator on top of the car came in about 4 feet long and 8 inches in diametercontact with a telephone guy wire across the the end of a telephone pole. The impact of track, which had been strung there three hours the train pulled the stob loose, and it crashed before by workmen of defendant telephone company the wire extending from a pole across the through the car window where Beall was track to a billet of wood 4 feet long and 8 inch- sitting. He was knocked out of the seat and es in diameter, which had been braced in a tree fell on his back in the aisle. Four of the and the wire thereto attached, the wire being loose on the billet and the billet not being fas car windows were broken, and the shattertened in the tree, but merely jammed among the ed glass inflicted many painful and bloody limbs. The wire did not extend from the billet wounds on his head and face. These injuat right angles, but had a sideways and upward ries, however, were of a minor character. pull

, and if tight would have cleared the top of The serious and permanent injuries alleged the car by 12 feet. The wire had been similarly stretched across the track for a number of were to his left leg and spine, due to the years without causing trouble; the change made lick from the stob and his fall in the aisle. being only in the fastening of the wire. Held, First aid was given by a physician who hapthat the catching of the wire on the ventilator raised a prima facie presumption of negligence pened to be on the train. In this way the exunder the doctrine of res ipsa loquitur, and that terior wounds were washed and bandaged so the burden was upon the defendant to prove that he continued the journey to Cincinnati, that the accident happened without negligence his destination. During the next few days on its part.

[Ed. Note.—For other cases, see Telegraphs his family physician in Cincinnati picked out and Telephones, Cent. Dig. $ 13; Dec. Dig. Om many pieces of glass and redressed the 20.]

wounds.

At the time of the accident Beall was 43 for $12,000, but whether, in view of the eviyears of age and general manager for the dence at the first trial, we can say that the Pugh Printing Company of Cincinnati, under court erred in setting aside the $12,000 vera contract extending over several years, at a dict then rendered. As said by the court on salary of $7,300 per annum. His duties kept similar questions in the case of Brown v. L. him traveling most of the time on business of & N. R. R. Co., 144 Ky. 546, 139 S. W. 782: the company. For 20 years there was a "The question now to be considered is not varicose vein in his left leg midway between confined to what our opinion may be as to the the knee and ankle, but prior to the accident pends rather whether the setting of it aside was it had never caused him any trouble or incon- an abuse of discretion on the part of the trial venience. There were many bruises on both judge. Under the settled practice the granting legs, but the most serious was on the left of new trials is a matter largely within the dis

cretion of the trial court, and unless it appears leg. This so aggravated and inflamed the that this discretion has been abused, or, to varicose condition that physicians advised a state it differently, not properly exercised, we surgical operation to remove the vein. In do not feel disposed to interfere with it.” Pace three days after the accident his back be-105, 28 Ky. Law Rep. 278; Walls v. Walls, 99

v. Paducah Railway & Lighting Co., 89 S. W. gan to pain him, and an abnormal nervous S. W. 969, 30 Ky. Law Rep. 949; Cochran v. condition appeared; these conditions have Cochran, 93 s. W. 18, 29 Ky. Law Rep. 333; continued intermittently and with increased Floyd v. Paducah Railway & Light Co., 73 ! severity. He grew nervous and irritable, and W. 1122, 24 Ky. Law Rep. 2364. to obtain rest frequent administration of

[2, 3] We have examined the evidence givnarcotics was necessary. During the summer en on both trials, and, on the question of he was under the care of physicians, not only damages, have reached the conclusion that in Cincinnati, but at Chicago and Battle the court did not err in setting aside the Creek and finally at St. Louis. Several times first verdict, nor in refusing to set aside the during that period he thought himself suffi- second. The evidence as to permanent inciently restored to take up his work, but in jury was not as strong on the first trial as a few days he would break down. After the it was on the second. There was a conflict accident each of his physicians advised a sur- both times in the medical testimony as to gical operation for the varicose vein, and in how long Beall would probably be affected October, 1913, after ulcers had formed, sur-| by the injury to his spine, but at the first geons in St. Louis removed the vein from trial even those who thought it temporary ankle to hip. The operation was a success, were of the opinion that he would have to and there is now no claim for permanent in- go to a hospital and submit himself to medijury to the leg. The permanent injury is to cal treatment for many months in order to his nervous system, resulting, as it is claim- be restored. Others were of opinion that ed, from concussion of the brain and spine at he would never recover. The day before the time of the accident. Beall sued the Tele- the last trial, and on motion of the telephone phone and Railroad Companies to recover company, the court appointed Dr. Boggess, $30,000 damages for pain and suffering and an eminent physician, to examine Beall. permanent injury, and $2,303 for doctors, Each of the parties hereto had the privihospital, and traveling expenses. There have lege, and exercised it, of selecting a physibeen two trials. At each trial there was a cian to be present at the examination made directed verdict for the railroad, and on this by Dr. Boggess. The testimony of Dr. Bogappeal there is no criticism of those rulings gess shows his thorough examination and of the court.

the various tests he made. They are techniOn the first trial the jury returned a 'ver-cal, and it is unnecessary to mention them dict for $12,000 against the telephone com- in detail. It is sufficient to state his conclupany. On its motion this was set aside as ex- sions: cessive, because, in the opinion of the court, "I should say that many of these symptoms the proof did not then go to the extent of and many of these conditions are permanent, showing that the injuries were permanent, sible that the man will improve some in health

and will remain permanent. I believe it is posalthough at that time it appeared that he had from his present condition, but he will always not recovered. At the next trial there was have the trouble that he has now." a verdict and judgment for Ball for $7,250. Without this evidence on the first trial, The jury assessed $5,000 of it as compensa- we cannot say there was an abuse of discretion, and $2,250 for doctor's bills and ex- tion in setting aside the first verdict. Cerpense. It is from this judgment that the tainly there is no good reason shown why telephone company appeals, and

appeals, and claims, we should disturb the last on the ground of among other things, that this last verdict is excessiveness. excessive, although the amount awarded for [4] But the telephone company asks a remedical expense is not seriously criticized. versal on other grounds. It complains that Beall brings a cross-appeal and asks for a there was a variance between the pleadings reinstatement of the $12,000 verdict and judg- and proof; that there was not sufficient eviment in his favor.

dence of negligence to support the verdict; [1] We will consider first the cross-appeal. and that it was error to apply the doctrine The question is not whether the evidence on of res ipsa loquitur. To weigh these quesKy.)

BEALL V. LOUISVILLE HOME TELEPHONE CO.

253

the facts in evidence. It appears that a business, and experienced employés of other telephone pole on the east side of the rail- companies, who have similar duties to perroad track had, for a long while, been sup-form, all testified that it was customary to ported by this guy wire fastened to a tree place guy wires and stobs in trees as this west of the track and growing on the reser- was placed, and that it was not necessary to voir property. This tree had died on ac- tie or otherwise fasten the stob to the tree, count of the wire wrapped around it. Those and that the tree selected was in every way in charge of the reservoir property desired suitable for the purpose. They agree that to remove the tree, and notified the tele- the horizontal limb just over the wire made phone company to detach the wire. Permis- the stob secure; that is, protected it against sion was granted to use another tree near the up pull. by. It may as well be stated here that the From a diagram in the case it appears telephone company offered to prove to the that a straight line drawn from a point 49 jury that in granting permission to use an- feet high on the telephone pole to the point other tree the

in the tree where the stob was laid would "water company stated that they did not want clear the railroad track 26 feet and 8 inches. wires tied around any trees on their property so This is at least 12 feet higher than the as to injure or kill them, but that if the wire could be otherwise placed in the tree they were

standard car. Notwithstanding the inabiliwelcome to use it.'

ty of appellant's witnesses to account for the The court rejected all testimony as to stob coming loose and the wire swinging conditions imposed for use of the tree. Ap- down, and although for years the wire was pellant urges this also as a ground for re

across the track attached to its old fastenversal, and it will be referred to again. ing and at all times clear of the traffic, the Anyhow, on the day of the accident and fact remains that three hours after the men about 2 o'clock p. m. the change was made, completed the new work the wire was down and the wire was fastened to the new tree in sufficiently low to catch on a ventilator of the following manner: About 12 or 14 feet the Pullman car. Several other trains had from the ground the tree forked into three passed during the interval, but this was the limbs. This 4-foot stob, already referred to, first to carry a Pullman. We understand was laid horizontally in the forks in such a from the evidence that all passenger cars are way that it had a firm bearing against the of the same height, but that Pullman ventitwo front prongs, and was supported by the lators extend slightly above the ventilators prong which branched out behind it. Two on other cars. laps of the guy wire were taken around this

The accident occurred in May. The wind stob midway between the front forks, and was blowing, although not out of the ordinathen by means of block and tackle it was ry for the season. As the tree was swayed drawn tight over the railroad track and the back and forth by the wind so that the wire end of the wire twisted or fastened around was alternately made tight and loose, there the tightened wire, the connection being 3 was a natural tendency for the stob to shift to 5 feet out from the stob. Each end of the laterally in one direction while the wire, by stob projected about 4 inches beyond the reason of its loose wrap around the stob, tree forks, so that there was a space of 2 shifted its position on the stob in the other feet between the forks where the wire was direction, and it is equally natural that in wrapped around the stob. No hitches were the course of three hours one end of the stob cut or brads driven into the stob to hold the would be pulled entirely clear of the front wire in place and thus prevent the wire fork furthest removed from the telephone from slipping toward either end and making pole. But appellant argues that presumptions an unequal strain. Appellants' witnesses say or inferences of this kind are no more natuthat with the guy wire stretched tight like ral or plausible than a presumption that the they left it, such a thing as this could not water company objected to the manner in occur. Neither was anything done to make which the stob was placed in the tree, and the stob fast to the tree, except to tap it for that reason removed it, or else that it lightly with a hand axe. The wire did not was the work of a miscreant. In this we run at right angle from the stob, and since cannot agree with counsel. A presumption the other end of the wire was fastened near- of interference by the water company or by ly to the top of the telephone pole, at least miscreants would be based upon improbabili49 feet from the ground, there was a con- ties, and without a scintilla of fact for supstant up and side pull on the stob. But wit- port. nesses for the telephone company explain

The wire which came down and was the that there was no possibility of the stob direct cause of the injury was the same with being pulled upward, or at all out of place, which appellant's servants had just been because the wire was stretched one inch working, and which they had just left as a under a limb leading from one of these front complete and safe job. If their work had forks, and at right angle to the wire. There- been done with proper care and the wire fore they argue there was no chance for an fastened securely, the accident that happenupward movement. Numerous witnesses for ed is one that in the ordinary course of fords reasonable evidence that the accident "Notwithstanding the uncontradicted evidence happened from want of proper care. The of Elswick (the inspector] the jury might be of burden is then upon the defendant to explain physical conditions, that, as the roof fell soon

the opinion, based upon the evidence of the the cause in such a way as to demonstrate after his inspection, he did not make a careful that it exercised proper care to make it safe. inspection, or, in other words, that the master To reach this conclusion is to apply the did not exercise ordinary care to put and keep

This

the entry in reasonably safe condition. maxim res ipsa loquitur. But appellant con

was a question for the jury, not for the court, tends that the maxim should not be applied so the court erred in taking the case from the in this case, and argues that to prove mere- jury." ly that its servants had fastened the wire In the following cases these principles are three hours before it fell is not enough to discussed and the maxim applied. Shinn show that appellant had control of or was Glove Co. v. Sanders, 147 Ky. 349, 144 S. W. responsible for the condition of the guy wire 11; Paducah Traction Co. v. Baker, 130 Ky. and stob at the time of the accident, and 360, 113 S. W. 449, 18 L. R. A. (N. S.) 1185; therefore insists that the cause of the acci- L. & N. R. R. Co. v. Clark, 106 S. W. 1184; dent is simply a matter of conjecture. As Louisville Lighting Co. v. Owens, 105 S. W. has already been pointed out, the appellant 435. offered no explanation, and their witnesses [5] But it is contended that the proof did frankly confessed that they could not under- not show the specific acts of negligence alstand how the wire and stob got loose. leged. This is the variance complained of. When the uncontradicted evidence shows Two grounds of negligence are alleged, in the that the wire, with its former fastenings, alternative. It is said that Beall was injured had until three hours before the accident either "through the gross negligence and been suspended over the track for years carelessness of appellant in extending said without harm or hurt to any one, and that wire across the track at such a height that appellant's employés had just changed the the car in which plaintiff was riding could fastening, and then the accident happened, not safely pass under said wire without coland considering the uncontradicted evidence liding with same,” or “by the gross negligence as to the insecure manner in which the stob and carelessness of appellant in so placing was placed in the tree and the wire fastened and thereafter continuing said stob in the thereto, we are of opinion that the cause was forks of said tree in such manner that the not a matter of conjecture. The stob was wire became a dangerous and unsafe obworked loose from that tree as certainly struction across said track, so that the car and as naturally as the wind blows. In could not safely pass under the same without Hogan v. Manhattan Railroad, 149 N. Y. 23, colliding with it, and that one or both of said 43 N. E. 403, the court said:

facts was true.” The maxim res ipsa loquiIt is a well-settled rule of law that if a tur is a rule of evidence, not of pleading. person erects a building, bridge, or other struc- Presumptions were not pleaded, but we think ture upon a city street or an ordinary high- the evidence in the case does support the way, he is under a legal obligation to take reasonable care that nothing shall fall into the averment that there was negligence, “in placstreet and injure persons lawfully there. This ing and thereafter maintaining said stob in being so it is further assumed that buildings, the forks of said tree." Beard v. Klusmeier, bridges, and other structures properly construct- 158 Ky. 153, 164 S. W. 319, 50 L. R. A. (N. S.) ed do not ordinarily fall upon the wayfarer, so also, if anything falls from

them upon a person 1100. lawfully passing along the street or highway, [6] The court did not err in rejecting the the accident is prima facie evidence of negli: proffered testimony of the water company's gence, or, in other words, the presumption of the negligence arises."

officials limiting the means of tying or fasIn Huddleston's Adm'r v. Straight Creek given by the water company was not suffi

tening the stob to the tree. If the permission Coal Co., 138 Ky. 506, 128 S. W. 589, Hud- cient to allow the stob to be securely and dleston was killed early one morning at a safely fastened to the tree, that did not explace in the mine which had been inspected cuse appellant in risking the wire with a the evening before and pronounced safe. The partial or insecure fastening. court said:

Beall's employer continued him upon the “The uncontradicted evidence” of the inspectors showed that they "exercised ordinary care, pay roll for full wages, but appellant cannot * *

and there was no known cause that in- take credit for this. The fact could in no terfered with or changed" the conditions be- way decrease the amount Beall was entitled tween the time of inspection and the accident. to recover.

On this ground the lower court directed a Perceiving no prejudicial error, we are of verdict for defendant. This court in revers- opinion that the judgment of the lower court ing the case said:

should be affirmed.

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