and friends of the deceased, the defendant until she was safely off the plank and on arranged to have one of its engines and a the ground. But clearly under the facts, fiat car, on which temporary seats were plac- about which there is no dispute, the defended, carry the remains and the relatives and ant was not a common carrier of passenfriends of the deceased to the cemetery, gers, and did not owe to the plaintiff the which it appears was near the Louisville & high degree of care sought to be imposed on Nashville Railroad tracks on which these en- it, or any care, except ordinary care not to gines and cars were operated. The plaintiff, actively injure the plaintiff. The defendant who lived some distance from Benham, was was under no duty to assist the plaintiff to on her way to that place and reached the either get on or get off the car, and in so cemetery about the time that the funeral got doing was merely showing her an ordinary there, and after the burial, when the persons courtesy such as was extended to the other who had gone down there on the flat car were women and children on the car. Towns, who getting on to return, the plaintiff, without was in charge of the car, was not guilty of special invitation or request, followed the any act of positive negligence in letting go crowd from the cemetery to the flat car, and the hand and arm of the plaintiff at the time in company with the family and friends of and place that he did, because, as we have the deceased got on the flat car for the pur- said, he owed her no duty of assistance. pose of riding to Benham. No charge what- There can be no actionable negligence unless ever was made by the defendant for this there is a breach of duty, and the master service, nor did any person receive or collect cannot be held responsible for the courtesieg any compensation from the plaintiff, or ask of his servant when the master is under no or invite her to ride back on the car. The duty to extend the courtesies and the servperson in charge of the car, Mr. Towns, sup- ant merely renders them as a favor or acposed, as we may assume, that she was one commodation. The negligence of the servant of the company who had gone down on the in this case-if we should assume that he car, and no questions were asked or inquiry was negligent, although as a matter of fact made when she got on. When the car ar- he was not-was merely passive negligence, rived at Benham on its return from the consisting of the omission to assist the plaincemetery, it was stopped at a convenient tiff until she was safely on the ground. It place, there being no depot or arrangements is not contended that he was guilty of any for passengers, and the persons on the car affirmative act of negligence, or that her ingot from the car to the ground by walking jury was caused by any act of commission on a strong plank about 14 feet long and 12 on his part. inches wide, one end of which was placed on the floor of the car, which was about 42 feet from the ground, and the other end was put on the ground. When the plaintiff started down the inclined plank Towns, who, as said, appears to have been in charge of the arrangements for the defendant, was standing by the plank, assisting the women and children to walk down it, and for this purpose he took hold of the hand and arm of the plaintiff as she left the car, and held to her until she had walked nearly to the ground and near the end of the plank. When she reached this place on the plank which was about 2 feet from the ground, Towns let go her arm and hand for the purpose of assisting some other ladies or children who were behind her on the plank, and when he let her go, she slipped in some way and fell to the ground, breaking her arm. Under these circumstances it is sought to make the defendant liable upon the ground, as stated by counsel, that the defendant owed to the plaintiff "the duty of exercising the highest degree of care necessary for her safety and protection from the time she boarded the train until she safely alighted therefrom." In other words, it is sought to charge the defendant with the same high degree of care that a common carrier of passengers would owe to a passenger, and consequently the duty of assisting the plaintiff At the most the plaintiff was a mere invitee or licensee, and it is well settled that a person occupying this status, who is injured while on the premises of another, cannot maintain an action against the owner of the premises, unless he has been guilty of some intentional or positive act of negligence that causes the injury complained of. Indian Refining Co. v. Mobley, 134 Ky. 822, 121 S. W. 657, 24 L. R. A. (N. S.) 497. If the defendant in this case could be held liable, so could any private person, who furnished a wagon, team, and driver for accommodation to carry people he was under no duty to carry, be made liable if the driver of the wagon, in helping one of them on or off, should by accident or inattention let him fall. And of course there could be no liability on the owner in such a state of case. Wherefore the judgment is affirmed. LOUISVILLE & N. R. CO. v. MINK. (Court of Appeals of Kentucky. March 5, 1918.) 1. APPEAL AND ERROR 994(2)-REVIEWCREDIBILITY OF WITNESSES JURY QUES TION. and its determination will not be disturbed on The credibility of testimony is for the jury, appeal. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 2. APPEAL AND ERROR LAW OF CASE. Where a judgment in favor of a railroad brakeman, who was caught by a low-hanging telephone cable that fell from its fastening, was reversed solely on the ground that there was no evidence tending to show when the cable had sagged, so as to predicate a finding that the railroad company was negligent in failing to discover and remedy the defect, and on retrial there was evidence as to the time when the cable sagged upon which such finding could be based, the judgment on the former appeal is not conclusive as the law of the case; the evidence on the second trial differing from that on the first. 3. MASTER AND SERVANT 286(25)-INJU RIES TO SERVANT - ACTIONS-JURY QUESTION. In an action for injuries received by a railroad brakeman, who while riding on top of a train in discharge of his duties was caught and injured by a telephone cable, which had sagged from its fastening, the question whether the railroad company was negligent in failing to discover and remedy the defect held, under the evidence, for the jury. 4. APPEAL AND ERROR 1066 HARMLESS ERROR. REVIEW While his 1195(4)-REVIEW- the employ of the appellant, Louisville & In an action for injuries received by a brakeman, who was caught by a low-hanging telephone cable which had slipped from its fastenings, an instruction predicating liability on the fact that defendant railroad company or its agents in charge of the right of way knew of the dangerous condition of the cable, if it was dangerous, or by the exercise of ordinary care could have known thereof, is harmless, though erroneous, because the record failed to show any knowledge on the part of the railroad company of the dangerous condition, for it will be presumed that the jury based their verdict on evidence that the company by the exercise of reasonable care might have known of the dangerous condition of the cable. 5. APPEAL AND ERROR 1004(1)-DAMAGES 208 (1)-REVIEW-MEASURE OF DAMAGES -JURY QUESTION. The measure of damages in a personal injury action is for the jury, and unless the award is so large as to strike one at first blush that it was rendered under the influence of passion or prejudice, it will not be disturbed as being excessive. 6. DAMAGES 132(1) - PERSONAL INJURYMEASURE. An award of $1,350 in favor of a railroad brakeman, who was caught and injured by a low-hanging telephone cable while standing on the train, cannot, it appearing that the brakeman was thrown to the car roof and strained, so that he was practically disabled from lifting heavy objects, be disturbed as excessive; there being testimony that he was treated by several doctors and was considerably injured. Appeal from Circuit Court, Whitley County. Action by A. M. Mink against the Louisville & Nashville Railroad Company. From a judgment for plaintiff, defendant appeals. Affirmed. See, also, 168 Ky. 394, 182 S. W. 188. Benjamin D. Warfield, of Louisville, and Hiram H. Tye, of Williamsburg, for appellant. Sawyer A. Smith, of Barbourville, and J. B. Snyder, of Williamsburg, for appellee. THOMAS, J. The appellee, Mink, who was plaintiff below, on August 16, 1914, was in [1] On the first trial, as well as on the second one, the evidence showed that the cable which produced the injury was owned by the Home Telephone Company, with which the defendant had no connection, and therefore had no control over either the construction or the maintenance of the cable. It was attached to hangers, which in turn were screwed to posts on either side of the track and occupied an elevation when so constructed of about 23 feet above the track, which was amply sufficient to enable one standing upon a freight car to pass under it unmolested. The east end of the cable had become detached from the post, and had fallen several feet below to some telegraph wires running parallel with the railroad track on that side. While in this position it was not elevated above the track more than 16 or 18 feet, which was not sufficient to make a clearance for one standing For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes upon a car passing under it. There was no evidence on the first trial showing when the cable had fallen from its attachment, so as to menace the safety of the railroad employés, and since the cable was not owned, managed, or under the control of the defendant, this court in the first opinion declined to apply the doctrine of res ipsa loquitur, as was insisted upon by the plaintiff. This refusal presented a prima facie case of negligence on the part of the defendant, arising from the mere fact of the cable being out of repair and in a dangerous position. With this feature of the case eliminated, it was determined by this court that the only negligence of which the defendant could be guilty under the circumstances was its failure to exercise ordinary care to discover the dangerous position of the cable in time to repair it and make it safe, or to remove it in some way as a menace to the safety of the employés upon its trains. But the court held that this measure of duty on the part of the defendant could not be applied under the facts as then disclosed, because there was an entire absence of testimony as to when the cable became detached, and therefore dangerous, and on this point said: "The cable became a menace to appellant's employés the moment it came within the space occupied by appellant in the movement of its trains, and from then on appellant's duty of inspection demanded that appellant should have discovered it as soon as it could have been done by the use of ordinary care, and if said cable had been down, as it was when it struck appellee, or even loose from its support, for a sufficient time for appellant in the exercise of ordinary care to have discovered it, appellant would be liable, but it is here that appellee's evidence failed. There is absolutely no evidenco when the cable sagged, and from the evidence in the case it might reasonably be concluded to have done so at the very instant it struck appellee. If this were true, then, of course, appellant could not by the exercise of ordinary caro have discovered it." On the second trial the plaintiff introduced for the first time a witness by the name of Poindexter, whose testimony, if true, supplied the omission pointed out in the first opinion, and did "show how long before this accident the cable had sagged to the position where it became a menace to appellant's employés upon the top of its trains passing under the cable," and which testimony removed the objection to the first judgment that "there is absolutely no evidence when the cable sagged." The substance of Poindexter's testimony is that on Saturday before the accident, which occurred on Sunday, at about 6 o'clock a. m., he went from Barbourville, near which place he lived, to Middlesboro, and that at 9 o'clock a. m. of that day he went to the depot at the latter place to board a train for his return trip, but it had passed, and while there he and a friend, who is now in the United States army, in walking around the depot, noticed the cable in its fallen-down condition, and that it was then not exceeding 16 or 18 feet above the rails of the track. When the train on which plaintiff was hurt was passing through Barbourville the following Sunday, Poindexter noticed the evidences of plaintiff's injury, and upon inquiry learned that he had been hurt by the cable at Middlesboro, whereupon the witness told plaintiff what he had seen the day before. At that time plaintiff did not know the name of the witness, or where he lived, and he offers this as an excuse for not having the witness present at his first trial. There is no positive evidence contradicting the testimony of Poindexter concerning the condition of the cable as testified to by him on Saturday morning before the injury the next day between 12 and 1 o'clock, except negative and somewhat vague testimony given by the section boss and the trackwalker at Middlesboro, to the effect that they did not see the fallen condition of the cable at any time after Poindexter claims to have seen it until after the accident. They show that they could have seen it had they looked, but neither of them, nor does any other witness, state that they made an actual observation of the cable between those times. In fact, the trackwalker positively states that he did not look at the cable while performing his duties as such employé, and on the first trial the section boss stated positively that he did not notice the cable between the times mentioned. It is shown in the testimony that some 25 or more trains passed the point within 24 hours; the last one passing there just preceding the accident was a freight train going south about an hour before. the duty of the brakeman of that train to be on top of it, and, if he had been, he would have discovered the condition of the cable if it had been down, He did not make such discovery, and it is argued that this is positive testimony to the effect that Poindexter was either mistaken or is testifying falsely. But no such conclusion is justified by the record, because that witness, although ft was perhaps his duty to be on top of his train, nowhere says he occupied that place at that point. On the contrary, he says that caboose when the train was passing there, sometimes he was either in the engine or the and may have also been so located at the time. The members of the crew of that last train passing the point are the only witnesses introduced by the defendant, although, as stated, perhaps as many as 25 trains passed the point after the time when Poindexter says he saw the cable down. It was It must not be forgotten that, although the cable in its fallen condition would come in contact with one standing on top of a car, yet it was high enough to permit a train to pass under it. The testimony of the telephone men corroborate that of Poindexter as to the position of the cable in its fallen condition, and upon the whole case we do not find sufficient testimony in the record, either direct or circumstantial, to authorize the jury, or this court upon appeal, to discard employés on its train to which plaintiff belonged the duty to exercise ordinary care to discover dangers and to render reasonably safe the place where plaintiff was required to perform his duties. Whether by the exercise of such care it could have discovered the danger which produced the accident from the time Poindexter first saw it, as he testified, and could have remedied it before the plaintiff was hurt, was a question peculiarly for the jury. his testimony as being wholly incredible. | defendant's motion for a peremptory inOn the contrary, we find corroborating cir-struction in its favor. cumstances entitling it to belief, although [3] It is conceded (as was held on the his statement that he went to Middlesboro former appeal) that defendant owed to its on the day in question "just to be going" is not altogether convincing. These matters, however, were pre-eminently for the jury. It has shown by its verdict that it accepted this new testimony, and under the well-known rules of practice in this state we are not authorized to disturb its finding upon this issue. [2] Counsel for appellant insist that this appeal presents conditions where "the law of the case" rule should be applied, and in support of that contention he cites many cases from this court, among which are Louisville & Nashville Railroad Co. v. Schmetzer, 94 Ky. 424, 22 S. W. 603, 15 Ky. Law Rep. 194; L. & N. R. R. Co. v. Ricketts, 52 S. W. 939, 21 Ky. Law Rep. 662; L. & N. R. R. Co. v. Hocker, 111 Ky. 707, 64 S. W. 638, 65 S. W. 119, 23 Ky. Law Rep. 982, 1274; Quisenberry v. Chenault, 143 Ky. 312, 136 S. W. 625: Samuels & Co. v. Gilmore & Co., 142 Ky. 166, 134 S. W. 169; Helm v. C., N. O. & T. P. Ry. Co., 156 Ky. 240, 160 S. W. 945; Keiffer v. L. & N. R. R. Co., 143 Ky. 383, 136 S. W. 858; I. C. R. R. Co. v. France's Adm'r, 123 S. W. 336; Hopkins v. Adam Roth Grocery Co., 105 Ky. 357, 49 S. W. 18, 20 Ky. Law Rep. 1227; and Beaver's Adm'r v. Proctor Coal Co., 159 Ky. 578, 167 S. W. 885. He might have cited, in support of that rule, many more cases from this court, as well as from others, and also from all the text-writers upon the subject. That rule, as announced by the cases supra, is that the law as settled by the first appeal is the law of that case, "right or wrong," upon all subsequent trials, either in the lower court or upon appeal, where the testimony presents substantially the same state of facts. The converse of the proposition is equally true that, where the testimony upon any subsequent trial is substantially different from that heard upon the first one, the court is not bound by anything which may have been said on the first hearing of the case upon the record as then presented. Many cases besides those above could be cited in support of the converse of the rule which we have just stated, but it is so fundamental and so well understood by courts and practitioners that we deem it unnecessary to thus incumber this opinion. We find, then, that the only reason for reversing the first judgment, based upon the objections that "there is nothing in the evidence to show how long before this accident the cable had sagged," and "there is absolutely no evidence when the cable sagged," etc., as found in the former opinion is entirely removed by the testimony of Poindexter, which not only rendered the testimony upon the last trial substantially different from that heard upon the first one, but put an entirely different phase upon the case, and the court [4] The court gave to the jury five instructions, defendant offering none except a peremptory one, which, as we have seen, was properly overruled. To all of those given, except No. 5, the defendant objected, and, its objections being overruled, it excepted. However, in the brief of counsel only No. 1, given by the court, is criticized, and this not severely, since, indeed, it could not well be That instruction is the usual one given in such cases, and it predicated liability upon the fact that defendant, "or its agents in charge of the right of way at the point mentioned, knew of the dangerous condition of the said cable, if it was dangerous, or by the exercise of ordinary care could have known thereof," etc. The criticism of this instruction is aimed at that part of it fixing liability on the defendant if it, or its agents in charge of its right of way, "knew of the condition" etc.; it being insisted that there was no evidence that any one connected with the defendant knew, previous to the accident, that the cable had fallen, and that it was therefore error to predicate liability upon such actual knowledge. Answering this, we might say that the record is not altogether barren of testimony and circumstances from which the jury might be authorized to find such actual knowledge; but, if it were, we are not to presume that the jury based its verdict upon such actual knowledge, if there was no evidence to support it, but rather would it be concluded that the verdict was based upon the other condition, amply supported by the testimony, viz. "or by the exercise of ordinary care could have known thereof." If, therefore, the criticism be well founded, the error is of such a nature as not to be prejudicial. [5, 6] Lastly, it is complained that the verdict is excessive. On that point it is fairly well shown that the plaintiff received a considerable wrench by his contact with the cable of his neck, side, and back. While the skin was not penetrated at the place, the cuticle was roughed up and made to inflame. He suffered considerably, and had three doctors to treat him at different times. He worked no more at his old job, but after some weeks he tried to do work in a coal heavy and he was unable to perform it. His by whom deceased was employed. Held that, in neck, side, and back still pain him, and he view of the broad powers of the domiciliary administratrix, and of the fact that the ancillary is practically disabled, according to his tes- administration in Kentucky was only to enable timony, from lifting heavy objects. This her to obtain a settlement of the claim, and disqualifies him from doing many kinds of as the proceeds derived would have to be diswork. He was stout and healthy before be-tributed according to the law of the deceased's domicile, such compromise is binding, and will ing injured, and, while there is a conflict in defeat an action by the ancillary administrator. the testimony, yet there is some evidence indicating that his injuries because of strains might be permanent. Upon issues of this kind the jury is eminently qualified to pass, under all the facts and circumstances, and the rule is that, unless the verdict is so large as to strike one at first blush that it was rendered under the influence of passion or prejudice on the part of the jury, it will not be disturbed as being excessive. Under this rule, and after a careful consideration of the record, we do not feel that we would be authorized to reverse the judgment upon this ground. Upon the whole case, we find no substan tial error against the rights of the defendant, and the judgment is therefore affirmed. COMPTON'S ADM'R v. BORDERLAND (Court of Appeals of Kentucky. March 8, 1. DEATH 8 CONSTITUTIONAL PROVISIONS. An action for damages for death in Kentucky is governed by Const. § 241, and Ky. St. § 6, relating to and providing remedies for wrongful death. 2. DEATH 31(3)-ACTION-RIGHT TO MAIN Appeal from Circuit Court, Pike County. Action by Roscoe Vanover, administrator of the estate of John Compton, against the From a judgBorderland Coal Company. ment dismissing the petition, plaintiff appeals. Affirmed. Roscoe Vanover, of Pikeville, and J. C. Cantrell, of Stone, for appellant. J. J. Moore, of Pikeville, James P. Woods, of Roanoke, Va., and Samuel D. Stokes, of Williamson, W. Va., for appellee. SETTLE, C. J. December 21, 1915, John Compton, an employé of the appellee, Borderland Coal Company, while engaged in the work of mining coal for it in Pike county, was killed by a block of slate which fell upon him from the roof of the mine, and this action was brought by the appellant, Roscoe Vanover, as administrator of his estate, seeking to recover of appellee damages for his death; it being alleged in the petition that it was caused by the negligence of appellee and its mine foreman in failing to provide him with a reasonably safe place for the performance of the work required of him. The amount of damages claimed was $3,000. The appellee filed an answer which, with its amendments, consisted of four paragraphs; the first containing a traverse; the second, a plea of contributory negligence on the part of the decedent; the third, assumption of risk by the latter. In the fourth 60- paragraph it was alleged, in substance, that DOMICILIARY ADMINISTRATORS-AUTHORITY. at the time of his death John Compton was A domiciliary administrator, in contradistinction to an ancillary administrator, whose authority extends only to the property of the decedent within the jurisdiction for which he is appointed, has title to the assets of the deceased wherever situated which may be recognized in foreign jurisdictions in the absence of local creditors or local administration therein. TAIN. Under Ky. St. § 3880, declaring that, if there be an executor or administrator of a decedent qualified by a court of the state, he alone shall have power to sue, the authority to bring an action for wrongful death authorized by Const. § 241, and Ky. St. § 6, is conferred upon the resident administrator alone. 3. EXECUTORS AND ADMINISTRATORS a bona fide resident of Scioto county, Ohio, with his family, consisting of a wife and two children; that he came to Kentucky shortly before his death to accept temporary employment in appellee's mine, intending and expecting to return in a few weeks or months to his home and family in Scioto county, Ohio; that he did not own any property or owe any debts in Kentucky; that his widow, Belle Compton, was on January 20, 1916, appointed by the probate court of Scioto county, Ohio, administratrix of his estate, and then gave the necessary bond and duly qualified as such; and that between that date and January 26, 1916, the day of the institution of this action in the Pike circuit court by appellant, she, in West Virginia, the state in which appellee was incorporated and where it has its chief office, as administratrix of the decedent's estate, made with appellee a compromise and settlement where 4. EXECUTORS AND ADMINISTRATORS 87ACTIONS FOR WRONGFUL DEATH-RIGHT OF ANCILLARY ADMINISTRATORS TO MAINTAIN. Const. § 241, and Ky. St. § 6, provides for an action for wrongful death, while section 3880 declares that, if there be an executor or administrator of a decedent, he alone shall have power to sue, but any creditor who shall pay his debt or part of it without notice shall be discharged. Section 3882 authorizes a personal representative to compromise and settle any claim or demand for damages growing out of the injury to or death of the decedent, but section 3878, authorizing actions by nonresident representatives, does not include actions for torts. One while temporarily in this state met his death, and his widow, who was duly appointed administratrix in the state of his domicile, and without knowledge of the appointment of an ancillary administrator in Kentucky, com- by the liability of appellee, if any there was, promised with defendant, a foreign corporation for the death of the decedent, was agreed by For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |