One of Two
174 Ky. 761
Court of Appeals of Kentucky.
March 20, 1917.
ACTION: Reversed and remanded.

Appeal from Circuit Court, Knox County.
Actions by John Frank Girdner and by W. D. Girdner against the Cumberland Railroad Company. From judgments in each case for plaintiff, defendant appeals.

These two cases were tried separately below, and, involving the same facts, are heard together here, by agreement.

On the 12th day of February, 1915, appellee John Frank Girdner, then eight years of age, was run over by a mixed passenger and freight train of appellant at a point about 40 feet north of its passenger depot at the town of Warren, Knox county, Ky., and his right leg so crushed it had to be amputated above the knee. Alleging that the accident was the result of appellant's negligence in the operation of the train, the boy and his father, W. D. Girdner, brought these separate suits, and each recovered a judgment of $2,000, the boy for the loss of his leg, and the father for the loss of his son's services.

Upon the ground that the verdict and judgment, in each case are flagrantly against the evidence, and that the instructions were erroneous and prejudicial, and that the trial court erred in refusing to take from the consideration of the jury the testimony of the boy because of his refusal to answer the questions of appellant's counsel upon the cross-examination, these appeals are prosecuted.

Appellant admitted that at the place of the accident, by reason of the use of its tracks by the public, it owed appellee the duty of lookout, and other consequent duties.

Appellees' theory of the cases is that appellee John Frank Girdner at the time of the accident was walking on the outer ends of the ties of the railroad track in the same direction that the train was going; that the trainmen did not give proper warning of the approach of the train nor use the means at their command to avoid the accident after they discovered, or could have discovered by the exercise of ordinary care, the boy's peril; that the train, coming up behind appellee without his knowledge, ran against and over him; that the engine was backing, pushing the tender in front of it, and pulling the freight and passenger cars; that appellee was struck in the back of the head, while on the end of the ties, by a stirrup on the forward end of the tender, knocked forward on his face, and his leg run over by all of the cars of the train.

Appellant's defense is that as the train approached appellee ran across the track in front of the train to a place of safety on the western side of the track, and that, after the engine and freight cars had safely passed him, he ran alongside of the front end of the rear passenger car, and, in an attempt to jump on the steps of the front platform of that car, was thrown under the train and his leg run over by only the rear trucks of the last passenger car.

The testimony of John Frank Girdner, his sister, who is three years older than he, and of the witness John C. Lawson supports appellee's theory, although upon the cross-examination, in answer to the few questions that he did answer, John Frank Girdner contradicted the testimony he had given on the direct examination to the effect that he was not warned of the approach of the train, and admitted that he both saw and heard its approach in time to have avoided the accident, and his sister testified that she heard the approach of the train and got off of the track, but that she did not give any warning to her brother, who was walking beside her.

The testimony of the engineer and fireman and several disinterested witnesses who saw the accident, testifying for appellant, flatly contradicts the testimony of appellees' witnesses that the boy was struck by the forward end of the train, and establishes almost conclusively that he was not so struck, and that he was in a place of safety when the engine passed him.

1. In the instructions given the court submitted appellees' theory of the cases correctly, but authorized a finding for appellant if the jury did not believe appellees' theory of the cases, and submitted the question of contributory negligence in general and abstract terms only. Appellant by its testimony offered a positive defense of contributory negligence; that appellee was injured in an effort to take hold of or jump upon the passenger coach after the freight cars had passed him in safety, and offered an instruction presenting, in concrete form, this positive defense, which the court refused to give, and, upon the facts here, we think this was prejudicial error. It has long been the settled rule that both the plaintiff and defendant have the right to have their sides of the case presented to the jury, and in numerous recent cases this court has ordered reversals for the refusal to give an instruction presenting, in specific and concrete form, a defense which does more than simply refute plaintiff's theory of the case and presents an affirmative or positive defense of contributory negligence, and the facts of this case bring it clearly within that rule.

Although the instruction offered by appellant was not technically correct, it was the duty of the court to prepare and give a proper instruction upon the question.

2. Appellee John Frank Girdner at the time of the trial of this case was nine years of age, and upon direct examination, and in answer to such questions upon cross-examination as he desired to answer, testified in such a way as to prove that he is an exceedingly bright and intelligent boy and that he was thoroughly competent to testify; yet upon cross-examination he refused to answer practically all questions. Many of these questions were pertinent, and, having testified in his own behalf, he had no right to refuse to submit to cross- examination. To such questions as he was unwilling to answer neither his own counsel nor the court could induce him to do more than smile. After exhausting every effort to get him to answer questions, counsel for appellant moved the court to exclude all of his testimony, and the court overruled this motion, to which exception was saved, and we are now asked to pass upon the question of whether or not this was error.

No authorities are cited by appellant in support of this position, and we have found no case directly in point, but the right of opposing counsel to cross- examine a witness introduced by the other party is elementary, and has always been recognized and enforced. At common law no evidence might be admitted but what was, or might be, under the examination of both parties. In the following cases, where cross-examination had been prevented without any fault of the adverse parties, the evidence was excluded.

Counsel for appellant applied to the court to compel the witness to answer his questions, and the court exhausted its power of persuasion to induce answers, without avail, but did not use coercive means, evidently because of the tender age of the plaintiff. After having exhausted every possible means to get him to testify, counsel for appellant was compelled to abandon the attempt to cross-examine the witness, and under these circumstances we think the court should have excluded all of the evidence of this witness, and that his failure to do so was prejudicial error, because it denied the appellant his unquestioned right and most effective method of testing the credibility of the witness.

3. In addition to the fact that the testimony of the witnesses who saw the accident is almost conclusive that it did not happen as claimed by appellees, but did happen as claimed by appellant, the physical facts in evidence are so contradictory to appellees' witnesses, and corroborative of the testimony for appellant, that we are unable to avoid the conclusion that the verdicts of the jury herein are flagrantly against the evidence.

Appellee John Frank Girdner and the witness Lawson testified that the boy was struck in the back of the head by an iron stirrup on the front of the tender, and thereby knocked down; yet the boy was not rendered unconscious, he made no complaint to the physician who was called to attend him, of any injury about the head, and no one testifies to having noticed any injury or bruise upon his back or head.

Several witnesses testify that almost immediately after the accident they made an examination of the wheels under all of the cars of the train upon the side upon which appellee was injured, and that there was no blood or other evidence upon any of the wheels that they had passed over appellee, except upon the two rear wheels of the rear passenger car, where such evidences were found.

The testimony of the sister that, while walking along the track with her brother, she heard the train and got off, but said nothing to him, and gave him no warning of the danger, is most unnatural.

The boy, after having testified on direct examination that he did not see, hear or know of the approach of the train, upon cross-examination, before he quit answering questions, described the points at which he saw and heard the train as it approached.

From a very careful consideration of the evidence we are convinced that the verdict of the jury in each of the cases, one of which was signed by nine jurors, and the other by ten, is flagrantly against the evidence, and that the court erred in refusing to grant a new trial upon this ground.

For the reasons indicated, the judgment in each case is reversed, and the causes are remanded for proceedings consistent herewith.

Ky.App. 1917.
192 S.W. 873, 174 Ky. 761

Case two of two
184 Ky. 375
Court of Appeals of Kentucky.
May 23, 1919.
ACTION: Affirmed.

Appeal from Circuit Court, Knox County. Action by John Frank Girdner, by, etc., against the Cumberland Railroad Company. From judgment for plaintiff, defendant appeals. THOMAS, J.
This is the second appeal of this case, the first opinion being reported in 174 Ky. 761, 192 S. W. 873, where the facts out of which the litigation grew, as well as the contentions of the respective parties, are clearly and fully stated. Upon the trial then under review there was a verdict followed by a judgment in favor of plaintiff for the sum of $2,000, which was reversed upon the grounds:

(a) That the court overruled defendant's motion to exclude from the jury all of the testimony given by the plaintiff, John Frank Girdner, who, at the time he testified on that trial, was about nine years of age (being eight years old when he sustained the injuries for which he sues), because he declined to answer questions propounded to him upon cross-examination;

(b) that the court failed to properly instruct the jury, in that the defendant's theory of the case was not submitted under a concrete instruction which the court held under the peculiar facts of the case it was entitled to; and

(c) that the verdict was flagrantly against the evidence. After the return of the case there was a second trial had, in which the plaintiff cured ground

(a) for the reversal by properly answering all questions propounded to him by defendant's attorneys, and the concrete instruction which the court directed under ground

(b) was given to the jury. The evidence was substantially the same, and the jury returned a verdict in favor of plaintiff for the sum of $6,000. Upon that trial defendant filed motion and reasons for a new trial embodying the same complaints as it did in its motion filed in the first trial, and the trial court sustained the motion, saying:

"Although this court does not find that the verdict is against the weight of the evidence, yet the law as laid down in the former appeal is the law of the case, and being of the opinion that the evidence is not substantially different from the first case, and that law governing this court, the motion for a new trial of the defendant is hereby sustained, and the defendant is hereby granted a new trial, on the ground above indicated and that only, to which the plaintiff objects and excepts."

A third trial was had in which the evidence in behalf of plaintiff's theory of the case was in some respects strengthened over that heard upon the first trial when the case was here on the first appeal, and upon the last trial there was a verdict in favor of plaintiff for the sum of $9,500, upon which judgment was rendered, and, defendant's motion for a new trial having been overruled, it prosecutes this appeal, urging in its motion many grounds for a reversal, but insisting in this court that--

"(1) Appellee failed to prove he was in the exercise of ordinary care at the time of the injury.
(2) Appellee's negligence was the sole, direct, and proximate cause of his injury.
(3) The damages are excessive and were given under the influence of passion and prejudice on the part of the jury."

Notwithstanding the above classification of the errors complained of, at the beginning of appellant's brief its counsel discusses other supposed grounds, among which is the contention that the verdict is flagrantly against the evidence, and we had perhaps as well dispose of it at the beginning.

The two new trials heretofore obtained by defendant--the first of which was granted by this court on the first appeal and the second by the court below--were granted because the verdicts were not sustained by and were flagrantly against the evidence. Section 341 of the Civil Code, in part, says: "Nor shall more than two new trials be granted to a party upon the ground that the verdict is not sustained by the evidence."

In applying that provision of the Code, this court has uniformly held in a long line of cases that, where there have been three verdicts for the same party, the court will not disturb the third one upon the ground that it is flagrantly against the weight of the evidence and not sustained thereby, where the same complaint was made against the first two verdicts and urged as grounds for setting them aside; and this, although the first two judgments were reversed or set aside for errors of law.

Many other cases from this court, determined both before and since the cases cited above, hold to the same construction of the section of the Code, supra, and the rule of practice forbidding the granting of more than two new trials upon this ground is now firmly fixed in this jurisdiction. So that, were we of the opinion that the verdict now under review was flagrantly against the evidence and not sustained thereby, we would be bound by this well-established rule of practice and could not reverse the case for that reason on this, the third, trial. But we are not disposed to hold that the verdict upon the last trial is subject to the criticism made. Three witnesses testified to the accident occurring in the manner which plaintiff contends it did: i. e., that he was walking on the ends of the ties of the railroad track, at a place where it is conceded in this record he had the right to be, and that the train backed on him without giving signals or any warning of its approach; that upon being struck by the rear of the tender, which was in front of the train as then made up, he was knocked or pushed down upon his face on the ends of the ties, and in scuffling to relieve himself of the peril he finally got his right leg over the rail when the rear trucks of the last car ran over it, resulting in its being amputated between the knee and the hip. Four witnesses testified to facts contradicting the statements of plaintiff as to how the accident happened. They say the train passed plaintiff while he was off of the track and at a safe place, that it did not strike him or knock him down, and two of them testified to facts which would indicate that he was trying to board the train in order to ride a short distance up to the depot; but neither of the two states that plaintiff was grabbing at the train or any portion of it as though he were endeavoring to board it. Upon this crucial issue we have three witnesses testifying to plaintiff's theory and four to that of defendant. We cannot say that a verdict adopting the testimony of the three witnesses for plaintiff, rather than the facts testified to by defendant's four witnesses, is flagrantly against the evidence, or that the verdict is not sustained by it.

The court on its own motion upon the trial now under review gave to the jury eight instructions, all of which were given upon the first trial except the modification of the eighth instruction directed by the former opinion of this court. No exceptions were taken to any of them, nor did defendant offer any instructions, so that there can be no complaint growing out of the action of the court in instructing the jury. There remains, then, only the three grounds taken from appellant's brief first mentioned above.

As to ground 1, that plaintiff failed to prove that he was in the exercise of ordinary care at the time he sustained his injuries, and ground 2, that appellee's negligence was the sole, direct, and proximate cause of his injuries, it is sufficient to say that each of them was involved, presented, and argued upon the first appeal. They were then, as now, based upon substantially the same evidence, with the possible exception of plaintiff's evidence being stronger upon the last trial than upon the first. Under the thoroughly established rule that the opinion upon the first appeal is the law of the case in subsequent trials, we are not at liberty to consider these two grounds upon this appeal. The rule forbidding our doing so, not only precludes us from considering on a subsequent appeal errors which were relied upon on the first appeal, and which were mentioned in the first opinion, because such errors are res adjudicata, but we are also precluded by the rule from considering errors relied upon and not noticed in the first opinion, as well as errors appearing in the record and which might have been but were not relied on.

This leaves only ground 3, that the verdict is excessive and appears to have been returned under the influence of passion and prejudice on the part of the jury. Under our system of judicial procedure, such questions must necessarily be left largely to the sound discretion of the jury. In the very nature of things there can be no accurate standard of measurement. Many elements enter into the calculation, such as expectancy of life, permanency of the injury, extent of the impairment to earn money, earning capacity of the one injured, and other facts which might throw light upon the question and enable the jury to arrive at an approximately correct sum under all the facts and circumstances. The fact that the plaintiff in this case is a mere youth will not be allowed as an element to reduce his damages. On the contrary, it is a fact which would tend to increase rather than diminish them, since in all probability his journey through life as a permanent cripple and a possible dependent is correspondingly lengthened. This court in a number of cases has sustained verdicts for larger sums where similar injuries were inflicted, and it has sustained as large or larger ones where the injuries were much less severe.

In the light of these authorities, there can be no serious contention that the verdict of $9,500 in this case is excessive, or, if so, that it is to such an extent as to cause the mind at first blush to conclude that it was returned under the influence of passion or prejudice on the part of the jury. It is only such excessiveness that will authorize a court to set aside the verdict for that reason.

Perceiving no error prejudicial to the substantial rights of the defendant, the judgment is affirmed.

Ky.App. 1919.
212 S.W. 105, 184 Ky. 375

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