Louisville & Nashville R. R. Co. v. Elkin

Court of Appeals of Kentucky

Louisville & Nashville R. R. Co. v. Elkin

4 Ky. Op. 271, 1870 Ky. LEXIS 324

DecidedJune 23, 1870

StatusPublished

This text of 4 Ky. Op. 271 (Louisville & Nashville R. R. Co. v. Elkin) is published on Counsel Stack Legal Research, covering Court of Appeals of Kentucky primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Louisville & Nashville R. R. Co. v. Elkin, 4 Ky. Op. 271, 1870 Ky. LEXIS 324 (Ky. Ct. App. 1870).

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Opinion

Opinion op the Court by

Judge Eobertson:

The jury had a right to disregard the alleged pass and consider [272]*272the carrier’s responsibility unqualified by any special contract, and, in this phase of the case, it was the duty of the officers controlling the train to know that the mule sued for was down and to have righted it without delay. And even if there was a binding special agreement imposing that care on the .owner’s agent, still, if the conductor knew that the mule was down, he was guilty of gross negligence in refusing the agent ample time to raise it; and, on either hypothesis, the evidence authorized the verdict, as to enlabie negligence.

Dunlap, for appellant. McKee, for appellee.

Had what is called the second been all the instruction given, there would have been fatal error in its pretermission of the hypothesis of the jury’s belief that the death of the mule resulted from its being down. But the first and second constitute but one alternative instruction, and the first branch of it requiring such belief by the jury should be understood as applying to the second branch, and we presume that the court and the jury so understood.

The mule was not valued so high as the legal standard might have authorized.

And however conflicting, the evidence authorized every deduction necessary to sustain the verdict, which therefore we can not disturb.

Wherefore, the judgment is affirmed.

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Opinion op the Court by

Judge Eobertson:

The jury had a right to disregard the alleged pass and consider [272]*272the carrier’s responsibility unqualified by any special contract, and, in this phase of the case, it was the duty of the officers controlling the train to know that the mule sued for was down and to have righted it without delay. And even if there was a binding special agreement imposing that care on the .owner’s agent, still, if the conductor knew that the mule was down, he was guilty of gross negligence in refusing the agent ample time to raise it; and, on either hypothesis, the evidence authorized the verdict, as to enlabie negligence.

Dunlap, for appellant. McKee, for appellee.

Had what is called the second been all the instruction given, there would have been fatal error in its pretermission of the hypothesis of the jury’s belief that the death of the mule resulted from its being down. But the first and second constitute but one alternative instruction, and the first branch of it requiring such belief by the jury should be understood as applying to the second branch, and we presume that the court and the jury so understood.

The mule was not valued so high as the legal standard might have authorized.

And however conflicting, the evidence authorized every deduction necessary to sustain the verdict, which therefore we can not disturb.

Wherefore, the judgment is affirmed.

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4 Ky. Op. 271, 1870 Ky. LEXIS 324, Counsel Stack Legal Research, https://law.counselstack.com/opinion/louisville-nashville-r-r-co-v-elkin-kyctapp-1870.