Case One of Two
Louisville & N.R. Co. v. Messer
175 S.W. 360
164 Ky. 218
Court of Appeals of Kentucky.
April 21, 1915.
ACTION: Affirmed.

Appeal from Circuit Court, Whitley County.
Action by Mahala Messer against the Louisville & Nashville Railroad Company.
Judgment for plaintiff, and defendant appeals.

This is a personal injury case in which plaintiff, Mahala Messer, recovered of defendant, Louisville & Nashville Railroad Company, a verdict and judgment of $3,000. The railroad company appeals.

According to the evidence of plaintiff, she was a passenger on defendant's train en route to her home at Gatliff. She was accompanied by her three children and by her sister-in-law, Mrs. Shore, and her child. When the train reached Savoy, plaintiff and Mrs. Shore were the last of the passengers to leave the coach. Mrs. Shore and her child first alighted. Plaintiff, with her two year old child in her arms, started down the steps. Her son about five years of age was following her. When plaintiff got on the second step and looked back to see what had become of her son, the flagman caught hold of her arm and gave her a jerk that caused her to fall from the second step to the ground with the child in her arms. Plaintiff immediately began suffering with a pain in her right side as if something had pulled loose. Both plaintiff and Mrs. Shore testified to the foregoing facts. While on her way to Gatliff and to her home plaintiff continued to suffer. About 30 minutes after she reached her home she went to bed and remained in bed about 10 days. She had heavy pains and frequently passed blood. With the exception of a day or two at a time she remained in bed from the day of the accident for a period of about a month and a half, when she had a miscarriage. Prior to the accident she had been well and strong. Thirteen days before that time she had taken a 20-mile trip over the mountains in an "Old Hickory" wagon with spring seats. She did not suffer any ill consequences from this trip. A few days after the accident two physicians examined the plaintiff and diagnosed the case as threatened abortion.

Defendant's conductor and brakeman denied all knowledge of the accident and stated in substance that no such occurrence took place. Plaintiff's family physician testified that he examined plaintiff and found tubercular baccilli present. In his opinion, if the jar incident to plaintiff's getting off the train had been sufficient to bring on a miscarriage the miscarriage would have followed within 24 to 48 hours. Two physicians also testified that when they examined plaintiff the womb was not dilated and there was no discharge therefrom.

The first ground urged for reversal is the admission of incompetent evidence. The evidence complained of is as follows:

"Q. Did you say anything to the flagman, or he to you, at the time he took hold of your arm? (Defendant objected; overruled; exception.) A. Yes. Q. What was it? (Defendant objected; overruled; exception.) A. I says to him, 'You must be in a hurry,' and he says, 'We are in a hurry,' and I says: 'You wouldn't treat me this way if my husband was with me. You see I am by myself with my little children and cannot help myself.' Mr. Tye: I move the court to exclude that answer from the jury, and that they be instructed not to consider it. The Court: Let the motion be entered."

Mrs. Shore also testified to the same effect. It will be observed that the court did not pass on the objection at the time it was made, but reserved his ruling. When the flagman Floyd was on the stand, he was asked if the conversation above referred to took place and he replied in the negative. Plaintiff and Mrs. Shore were then introduced in rebuttal and permitted to testify over defendant's objection that the conversation did take place. The court then admonished the jury that the testimony thus given in rebuttal could be received and considered by them only for the purpose of contradicting or impeaching the flagman Floyd.

Savoy was a wayside station. The train stopped for but a moment. The conversation complained of took place between the flagman and plaintiff while the train was still standing and within a few seconds after the injury occurred. The statements were practically contemporaneous with the injury. There was no time for reflection or deliberation. The remarks were spontaneous utterances growing out of the transaction itself. They were explanatory of the cause of the accident. They show that there was something unusual in the conduct of the flagman.

Under the foregoing and other authorities which might be cited, we think the conversation complained of was clearly admissible as substantive evidence under the res gestae rule. It follows, of course, that defendant was not prejudiced by the ruling of the trial court that the evidence was admissible for purposes of impeachment only.

It is next insisted that the evidence is insufficient to show that the miscarriage was the result of the accident. In this connection it is argued that it is just as probable that the miscarriage was caused by the wagon ride which plaintiff took a few days before the accident. The several witnesses, however, testified that plaintiff was in good health up to the time that she was injured in getting from the train. She suffered no ill effects from the wagon ride. Immediately after the accident she began to suffer pain and pass blood. The pain continued until the miscarriage occurred. During this period she was confined to the house practically all of the time. After the injury she was not subjected to any further jar, nor did she engage in any labor that would account for the miscarriage. Under these circumstances, we cannot say that the finding of the jury is not supported by the evidence.

Instruction No. 1 given by the trial court is as follows:
"(1) It was the duty of the defendant railroad company to exercise the highest degree of care to safely carry the plaintiff, Mahala Messer, while a passenger on its train mentioned in the evidence, and to allow her to alight from said train in safety. If you shall believe from the evidence that the flagman of defendant company while assisting passengers to alight from defendant's train at Savoy on the occasion mentioned in evidence carelessly or negligently pulled or jerked the plaintiff, at a time when plaintiff was exercising ordinary care for her own safety and while she was on the steps of said coach alighting therefrom, with such force or violence that the plaintiff was precipitated to the ground, injuring her in her body or limbs, from which she suffered pain or loss of power to perform labor, then the law is for the plaintiff, Mahala Messer, and you will so find."

The instruction is attacked on the ground that it imposed on the railroad company the duty to exercise the highest degree of care to safely carry plaintiff and to allow her to alight in safety. It is argued that as no accident happened to the train plaintiff had been safely carried to her destination, and that in assisting her to alight the flagman was required to exercise only ordinary care. The language complained of was merely prefatory. The real issue was whether or not the flagman pulled or jerked plaintiff from the steps of the car. In submitting this the real issue, the instruction is not subject to complaint. We are not, therefore, inclined to hold the instruction prejudicial for the reason assigned.

In reply to the contention that counsel for plaintiff was guilty of misconduct in his argument to the jury, it is sufficient to say that we have carefully considered the language complained of and have reached the conclusion that it is not of such a prejudicial character as to justify a reversal.

Judgment affirmed.

Ky.App. 1915.
175 S.W. 360, 164 Ky. 218

Case Two of Two
Louisville & N.R. Co. v. Messer
176 S.W. 1200
165 Ky. 506
Court of Appeals of Kentucky.
June 18, 1915.
ACTION: Reversed

Appeal from Circuit Court, Whitley County.
On petition for rehearing. Rehearing granted, former opinion reversed, judgment of the trial court reversed, and new trial granted.
For former opinion, see 175 S. W. 360.

Defendant's supplemental brief, calling our attention to the fact that the jury which tried this case was not properly impaneled, was not in the record when the case was decided, and the question was not considered by the court. The question is presented by defendant's petition for rehearing.

It appears that, when the case was called for trial, defendant moved to discharge the jury for the following reasons: The court not only discharged the first regular panel after one week's service, but discharged each subsequent panel after one week's service, and the jury which tried this case was the fifth jury which had been drawn, summoned, and impaneled during the term of court at which this case was tried. Defendant's motion to discharge the panel was overruled. In the recent cases we held that trial courts were authorized to discharge only the regular first panel of the jury after they had served one week, and impanel another jury, and were without authority to discharge the new jury thus impaneled after a week's service, and impanel another jury for the succeeding week, and continue this practice for each week of the term.

We further held that parties litigant are entitled to a trial by a jury impaneled in conformity to the statute, and that, where the question was properly raised, it was prejudicial error to refuse to discharge the jury, where the method provided by the statute for impaneling a jury was substantially disregarded.

For the reasons given, the petition for rehearing is granted, the order of affirmance set aside, and the judgment reversed for a new trial consistent with this opinion.

Ky.App. 1915.
176 S.W. 1200, 165 Ky. 506


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