Payne v. Hall
423 S.W.2d 530
Ky.,1968.
Jan. 26, 1968.


Whether certain instructions should or should not have been given was a matter that Court of Appeals could not consider, since objection to such instruction at trial was general, but objecting party attempted to make his objections specific on appeal.
J. W. Jordan, Barbourville, for appellant.
H. M. Tye, Barbourville, for appellee.

STEINFELD, Judge.
Sometime between 8:30 p.m. and 9:00 p.m. on May 10, 1964, appellant, Ed C. Payne, was walking along his left side of Kentucky Highway No. 225. He was leading a cow. He claims that he had a rope wrapped around his arm with the other end tied to the neck of the cow. A small boy was following closely behind the cow. Payne saw headlights of an automobile approaching in the direction in which he was walking and headlights of another vehicle approaching from the opposite direction. Realizing that he was in danger because the two vehicles would pass near the point where he was walking, he shouted to the boy 'look out' and he and the boy jumped across the shoulder of the road to a place about nine feet and possibly fifteen feet from the pavement. The cow remained on the shoulder between Payne and the paved portion of the road. The vehicle approaching Payne from the rear was traveling at a speed estimated at between 70 to 80 miles per hour. The Hall automobile which was approaching from the front of Payne was going about 40 miles per hour. Appellee, Hall, who was the only defendant below, testified that the car approaching him rounded a curve and was over on its left side which forced the Hall car onto the shoulder. He also claims he was blinded by the headlights of the fast moving vehicle which did not stop and neither it nor the driver have been identified. The Hall car struck the cow, killed it and traveled approximately 20 feet after the collision.

Payne claims that the rope around his arm and which was tied on to the cow's neck jerked and threw him backwards injuring him severely and that the injuries made necessary an operation and surgical treatment. Hall claims that Payne was not injured.

After hearing the evidence the jury returned a verdict as follows:
'We the jury as a whole find for the defendant, William Thomas Hall, not guilty of negligence. We further recommend that William Thomas Hall be required to pay $150.00 for the loss of the cow.' No motion for a new trial was made whereupon the court 'ordered and adjudged that the complaint herein against the defendant be dismissed, held for naught; that plaintiff take nothing thereby. The plaintiff shall recover his costs herein expended and this cause is now stricken from this court's docket.' Payne has appealed.

Hall says the award of court costs to Payne was error. Since he did not cross-appeal and made no motion in the lower court to correct the judgment, he cannot complain.

Payne contends that the verdict found the defendant not guilty of any negligence but allowed him to recover $150.00 for the death of the cow; also that the judgment did not follow the verdict because it dismissed his complaint but allowed him costs. He charges that the verdict is void because it is inconsistent with the law, and that the judgment is erroneous in that it did not follow the verdict. 'Where a verdict is materially inconsistent or incongruous it should, as a rule, be set aside and a new trial granted.

Hall argues that Payne waived his right to complain because he did not object to the verdict when the jury returned it and he did not file or make a motion for a new trial so that the lower court would have an opportunity to correct the alleged error.The trial court was given no opportunity to pass on these contentions, which is a prerequisite here to appellate review. 'Clearly before a party may request appellate review of such matters under those circumstances, the trial court must be given an opportunity to decide the questions raised.'

The judgment is affirmed.
All concur.
Ky.,1968.
Payne v. Hall
423 S.W.2d 530


     

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