James Marvin Williams of Springfield was a passenger on Accommodation train No. 41 at Shepherdsville on 20 Dec 1917. He sustained serious injuries in the crash and sued the railroad for compensation. He was awarded $6000 in a lower court, and the railroad appealed. The following judgment was printed in The Southwestern Reporter, Volume 217, pages 915-916.
(186 Ky. 680)
LOUISVILLE & N. R. CO. v. WILLIAMS.
(Court of Appeals of Kentucky. Jan. 30, 1920.)
1. DAMAGES 132(3)—$6,000 FOR INJURIES TO FEET, BACK, AND NERVOUS SYSTEM NOT EXCESSIVE.
Verdict of $6,000 for a railroad passenger's permanent injuries to feet, back, and nervous system, accompanied by intense suffering, where the jury was authorized to find punitive damages, held not excessive.
2. APPEAL AND ERROR 1053(1)—ORIGINAL ADMISSION OF EXCLUDED EVIDENCE NOT PREJUDICIAL.
In an action for injuries to passenger, original admission of plaintiff's testimony, subsequently excluded, that there were numerous dead and injured people all around him after the collision in which he was injured, held not prejudicial to defendant railroad.
3. TRIAL 59(1)—No DISQUALIFICATION of PARTY IN ORDINARY ACTION BY TAKING DEPOSITION OF OTHER WITNESSES IN CHIEF.
Under Civ. Code Prac. § 606, subsec. 3, in an equitable action, a party cannot give his deposition in chief after he has taken the deposition of other witnesses in chief, but in an ordinary action, as for personal injuries against a railroad, a party is not disqualified from testifying by merely taking the deposition of other witnesses in chief, but must go further and introduce the testimony by reading the depositions.
Appeal from Circuit Court, Washington County.
Action by J. M. Williams against the Louisville & Nashville Railroad Company. From judgment for plaintiff, defendant appeals. Affirmed.
Benjamin D. Warfield, of Louisville, and W. C. McChord, of Springfield, for appellant.
J. W. S. Clements, of Louisville, and W. F. Grigsby, of Springfield, for appellee.
CLAY, C. J. M. Williams brought suit against the Louisville & Nashville Railroad Company to recover damages for personal injuries. From a verdict and judgment in his favor for $6,000 the railroad company appeals.
On December 20, 1917, plaintiff was a passenger on defendant's local train, No. 41. While this train was standing at Shepherdsville, defendant's fast passenger train, No. 7, ran into it, injuring and killing a number of passengers. The car in which plaintiff was riding was split open, and plaintiff was thrown upon the track, where he lay bleeding and unconscious, with his clothes practically torn from his body. He was then carried to a hospital, where he remained for about a week, When he was placed on a stretcher and taken in an ambulance to the train which carried him to Springfield. For two months he lay in bed, being unable to rise or sit up except with the support of his hands. He was taken to Louisville, where he had braces fitted for his back, and he was then able to walk on crutches. He received several cuts and bruises about his body, two of the bones in his foot grew together, and any weight on his foot caused him great pain. There was a loss of motion in his back, and he could not move his back without great pain. There was also a semiparalysis of his lower limbs. During all this time his suffering was intense, and still continues. The accident was a great shock to his nervous system, and he was still in a highly nervous condition at the time of the trial, which occurred several months after the accident. The company's physicians testified that plaintiff's injuries were only temporary, and that he would soon recover therefrom.
[1] It is first insisted that the verdict is excessive. Taking into consideration the fact that there is evidence tending to show that the injury to plaintiff's foot is permanent, and that the injury to his back is probably permanent, that plaintiff's nervous system has been greatly shocked and impaired, that his suffering has been intense and will probably continue for some time to come, and the further fact that the case is one where the jury were properly authorized to find punitive damages, we are unable to say that the verdict is so excessive as to strike us at first blush as being the result of prejudice or passion.
[2] Complaint is made of the fact that plaintiff was permitted to state that there were numerous dead and injured people all around him, and other witnesses testified as to the number of people killed and injured in the wreck. Without passing on the admissibility of this evidence, it is sufficient to say that it was subsequently excluded by the court, and we are unable to perceive how its original admission was prejudicial in view of the great probability that it furnished no information to the jury not already known to them.
[3] Civ. Code Prac. § 606, subsec. 3, provides that no person shall testify for himself in chief in an ordinary action after introducing other testimony for himself in chief, nor in an equitable action after taking other testimony for himself in chief. It will be observed that the section makes a distinction between ordinary actions and equitable actions. In the former a party cannot testify for himself in chief after introducing other testimony for himself in chief, while in the latter he cannot testify for himself in chief after taking other testimony for himself in chief. Hence in an equitable action a party cannot give his deposition in chief after he has taken the depositions of other witnesses in chief (Cumberland Tel. & Tel. Co. v. Overfield, 127 Ky. 548, 106 S. W. 242, 32 Ky. Law Rep. 421); but in an ordinary action a party is not disqualified from testifying by merely taking the depositions of other witnesses in chief. He must go further and introduce the testimony by reading the depositions. Were the rule otherwise, a party would have to wait until after he had testified before he could take the depositions of other witnesses. In this case plaintiff testified before the depositions of other witnesses were read. That being true, no objection based on the above section of the Code was available.
We find no merit in the other errors relied on.
Judgment affirmed.
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