Opinion op'the Court by
Judge Oarroll
Affirming.
There have been four trials of this case. On the .first, trial the damages in favor of appellee were assessed at $10,000. This court, in an opinion that may be found in 122 Ky. 256, 91 S. W. 691, 3 L. R. A. (N. S.) 1190, reversed the judgment awarding this sum for errors of law occurring during the trial, and also “because the verdict was palpably against the weight of the evidence,” but held that .there was sufficient evidence to take the case to the jury. On the second trial the jury returned a verdict for $6,000. On an appeal from the judgment rendered upon that verdict, this court, in an opinion that may be found in 104 S. W. 344, 31 Ky. Law Rep. 944, reversed the judgment of the lower court upon the ground that the verdict was manifestly against the evidence. In fact, that was the only reason assigned for a reversal. Afterwards there, was another trial, [695] but the jury failed to agree. Upon the trial in which the judgment herein appealed from was rendered, the damages were assessed at $11,500.
Counsel for appellant insist that errors of law were committed by the trial court, but we fail to discover any that would authorize a reversal. The case seems to have been practiced entirely within the lines laid down in the former opinions of this court. It is, however, earnestly contended that, as the verdict is palpably against the weight of the evidence, the judgment should be reversed fori this reason alone. The evidence on all of the trials was substantially the same, and as the last verdict, as well as the others, was flagrantly against the evidence — that is to say, upon the evidence a verdict should have been rendered for the other party — we would for this reason remand the case for a new trial, if we did not feel obliged by the provisions of the Code that will presently be noticed to affirm the judgment.
Section 341 of the Civil Code of Practice reads: “A new trial shall not be granted on account of the smallness of damages in an action for an injury to the person or reputation, or in any other action in which the damages equal the actual pecuniary injury sustained; nor shall more than two new trials be granted to a party upon the ground that the verdict is not sustained by the evidence. ’ ’ The first, part of this, section was contained in the old Code of' Practice, but the words “nor shall more than two^ new trials be granted to a party upon the ground that the verdict is not sustained by the evidence” were added to the section by the present Code, which took effect in January, 1877; and in 1879, two years after the provision in question, was inserted in the Code, this court, in the case of L. & N. R. R. Co. v. Graves, [696] 78 Ky. 74, had occasion to consider and construe it. In that ease there had been three trials, and in each a verdict for the appellee, Graves, and also three appeals. In the course of the opinion on the last appeal the court said: “The case is therefore no stronger for the appellant than if we had simply said, on the former appeals, that the verdicts were clearly against the weight of the evidence. We are still of that opinion as to the last as well as the former verdicts. Was it, then, the duty of the court below to grant a neW trial, or is it the duty of this court to reverse because that court refused a new trial! The case has been tried three times, and each time there has been a verdict for the appellee on the same evidence. The former judgments were reversed for errors of law.' We have decided there was no error of law on the last trial, and, if we reverse, we must do so solely on the ground that the verdict is against the evidence. * * * It is true the reversals of this ease have been upon questions of law; but the fact still remains that there have been three findings in the same way upon the same evidence, and, while the case may not be within the letter, it is dearly within the spirit of the statute, and it is also within .a rule laid' down in the decisions of this court prior to the enactment of the statute.” Although two new trials had been granted by this court because of errors of. law committed during the progress of the trial, as well as for the reason that the verdicts were palpably against the .weight of the evidence, the court refused to disturb the third verdict, although it was also against the weight of the evidence, saying: “Questions of fact belong primarily to the jury, and the court only interferes to prevent injustice from haste, inadvertence, or prejudice; and as the court [697] has no authority to decide questions of fact in a case properly triable by a jury, if there be any evidence proper to be considered by the jury, if the jury will not give way the court must, that there may be an end of litigation.”
The construction then given to the provision in question has been followed by this court in L. & N. R. R. Co. v. Shumaker, 67 S. W. 829, 23 Ky. Law Rep. 2458; Board of Internal Improvements v. Moore, 74 S. W. 683, 25 Ky. Law Rep. 15; C., N. O. & T. P. Ry. Co. v. Halcomb, 105 S. W. 968, 32 Ky. Law. Rep. 381; Southern Ry. in Ky. v. Goddard, 108 S. W. 890, 32 Ky. Law Rep. 1397. So that it may now be considered as the settled practice that, when there have been three verdicts upon substantially the same evidence for the same party, the third verdict will not be disturbed upon the sole ground that it is not supported by, or is clearly against, the weight of the evidence. And this rule will obtain, although either one or both of the two first verdicts were set aside for errors of law appearing in the record. But there must be three verdicts. If there have been three trials, but the jury in one of them has failed to agree, the trial in which there was not a verdict will not be considered as one of the verdicts within the meaning of the code provision, although in Supreme Lodge of Knights of Honor v. Lapp, 74 S. W. 656, 25 Ky. Law Rep. 74, the court inadvertently said': “The rule in this State is that where there have been three verdicts for the same party, or two verdicts and a hung jury, the court will not disturb the verdict of the third jury on the ground that the verdict is not-sustained by the evidence.” This code provision however, and the construction given to it, does not limit the right of this court to [698] set. aside verdicts and grant a new trial when errors of law have been committed to the prejudice of the party appealing, or when the verdict is so excessive as to make, it plain that it was given under the influ-ence of passion or prejudice. When either of these conditions is made to appear, any number of verdicts may be set aside and new trials granted. City of Bardstown v. Nelson County, 121 Ky. 737, 90 S. W. 246, 28 Ky. Law Rep. 710; L. & N. R. R. Co. v. Ricketts, 52 S. W. 939, 21 Ky. Law Rep. 662; L. & N. R. R. Co. v. Carter, 86 S. W. 685, 27 Ky. Law Rep. 748.
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Opinion op'the Court by
Judge Oarroll
Affirming.
There have been four trials of this case. On the .first, trial the damages in favor of appellee were assessed at $10,000. This court, in an opinion that may be found in 122 Ky. 256, 91 S. W. 691, 3 L. R. A. (N. S.) 1190, reversed the judgment awarding this sum for errors of law occurring during the trial, and also “because the verdict was palpably against the weight of the evidence,” but held that .there was sufficient evidence to take the case to the jury. On the second trial the jury returned a verdict for $6,000. On an appeal from the judgment rendered upon that verdict, this court, in an opinion that may be found in 104 S. W. 344, 31 Ky. Law Rep. 944, reversed the judgment of the lower court upon the ground that the verdict was manifestly against the evidence. In fact, that was the only reason assigned for a reversal. Afterwards there, was another trial, [695] but the jury failed to agree. Upon the trial in which the judgment herein appealed from was rendered, the damages were assessed at $11,500.
Counsel for appellant insist that errors of law were committed by the trial court, but we fail to discover any that would authorize a reversal. The case seems to have been practiced entirely within the lines laid down in the former opinions of this court. It is, however, earnestly contended that, as the verdict is palpably against the weight of the evidence, the judgment should be reversed fori this reason alone. The evidence on all of the trials was substantially the same, and as the last verdict, as well as the others, was flagrantly against the evidence — that is to say, upon the evidence a verdict should have been rendered for the other party — we would for this reason remand the case for a new trial, if we did not feel obliged by the provisions of the Code that will presently be noticed to affirm the judgment.
Section 341 of the Civil Code of Practice reads: “A new trial shall not be granted on account of the smallness of damages in an action for an injury to the person or reputation, or in any other action in which the damages equal the actual pecuniary injury sustained; nor shall more than two new trials be granted to a party upon the ground that the verdict is not sustained by the evidence. ’ ’ The first, part of this, section was contained in the old Code of' Practice, but the words “nor shall more than two^ new trials be granted to a party upon the ground that the verdict is not sustained by the evidence” were added to the section by the present Code, which took effect in January, 1877; and in 1879, two years after the provision in question, was inserted in the Code, this court, in the case of L. & N. R. R. Co. v. Graves, [696] 78 Ky. 74, had occasion to consider and construe it. In that ease there had been three trials, and in each a verdict for the appellee, Graves, and also three appeals. In the course of the opinion on the last appeal the court said: “The case is therefore no stronger for the appellant than if we had simply said, on the former appeals, that the verdicts were clearly against the weight of the evidence. We are still of that opinion as to the last as well as the former verdicts. Was it, then, the duty of the court below to grant a neW trial, or is it the duty of this court to reverse because that court refused a new trial! The case has been tried three times, and each time there has been a verdict for the appellee on the same evidence. The former judgments were reversed for errors of law.' We have decided there was no error of law on the last trial, and, if we reverse, we must do so solely on the ground that the verdict is against the evidence. * * * It is true the reversals of this ease have been upon questions of law; but the fact still remains that there have been three findings in the same way upon the same evidence, and, while the case may not be within the letter, it is dearly within the spirit of the statute, and it is also within .a rule laid' down in the decisions of this court prior to the enactment of the statute.” Although two new trials had been granted by this court because of errors of. law committed during the progress of the trial, as well as for the reason that the verdicts were palpably against the .weight of the evidence, the court refused to disturb the third verdict, although it was also against the weight of the evidence, saying: “Questions of fact belong primarily to the jury, and the court only interferes to prevent injustice from haste, inadvertence, or prejudice; and as the court [697] has no authority to decide questions of fact in a case properly triable by a jury, if there be any evidence proper to be considered by the jury, if the jury will not give way the court must, that there may be an end of litigation.”
The construction then given to the provision in question has been followed by this court in L. & N. R. R. Co. v. Shumaker, 67 S. W. 829, 23 Ky. Law Rep. 2458; Board of Internal Improvements v. Moore, 74 S. W. 683, 25 Ky. Law Rep. 15; C., N. O. & T. P. Ry. Co. v. Halcomb, 105 S. W. 968, 32 Ky. Law. Rep. 381; Southern Ry. in Ky. v. Goddard, 108 S. W. 890, 32 Ky. Law Rep. 1397. So that it may now be considered as the settled practice that, when there have been three verdicts upon substantially the same evidence for the same party, the third verdict will not be disturbed upon the sole ground that it is not supported by, or is clearly against, the weight of the evidence. And this rule will obtain, although either one or both of the two first verdicts were set aside for errors of law appearing in the record. But there must be three verdicts. If there have been three trials, but the jury in one of them has failed to agree, the trial in which there was not a verdict will not be considered as one of the verdicts within the meaning of the code provision, although in Supreme Lodge of Knights of Honor v. Lapp, 74 S. W. 656, 25 Ky. Law Rep. 74, the court inadvertently said': “The rule in this State is that where there have been three verdicts for the same party, or two verdicts and a hung jury, the court will not disturb the verdict of the third jury on the ground that the verdict is not-sustained by the evidence.” This code provision however, and the construction given to it, does not limit the right of this court to [698] set. aside verdicts and grant a new trial when errors of law have been committed to the prejudice of the party appealing, or when the verdict is so excessive as to make, it plain that it was given under the influ-ence of passion or prejudice. When either of these conditions is made to appear, any number of verdicts may be set aside and new trials granted. City of Bardstown v. Nelson County, 121 Ky. 737, 90 S. W. 246, 28 Ky. Law Rep. 710; L. & N. R. R. Co. v. Ricketts, 52 S. W. 939, 21 Ky. Law Rep. 662; L. & N. R. R. Co. v. Carter, 86 S. W. 685, 27 Ky. Law Rep. 748.
It is further said that the verdict is excessive, and for this reason a new trial should! be granted. We cannot agree with- counsel in this contention. ' True it is that the verdict is contrary to the decided preponder enoe of the evidence; but it does not at all follow from this that it is excessive. Under the evidence there should have been a verdict for the railroad company; but, notwithstanding this, the jury, when they decided to find for the plaintiff, Daniel, were justified in assessing the damages at the amount they did. The injury appellee sustained not only caused him to suffer great pain, but resulted in the loss of his right arm near the shoulder and permanent injury to other parts of his body.
Complaint is also made of errors in the admission of evidence in respect to plaintiff’s habits of sobriety and industry. Upon this point, and to illustrate it, a witness was asked: “Q. Are you acquainted with fh’e plaintiff, Lewis Daniel? A. Yes, sir. Q. How long have you known him? A. I have known him all my life. Q. Are you acquainted with the general reputation of Lewis Daniel as to sobriety and industry in the community in which he lives ? A. Cer[699] tainly I know it. Q. Is that reputation for industry and sobriety good or bad? A'. It is good.' By the Court: Gentlemen of the jury, you will consider this evidence only in fixing- the earning capacity of Lewis Daniel.” Hie argument is made that, although it was admissible to prove that Daniel was a sober and industrious man' by those whose acquaintance with and observation of him authorized them to make the statement as a fact known to them, yet is. w'as not competent to prove his general reputation in these particulars. We think it would have been-better practice, after the witnesses had qualified themselves- to testify by showing that they were acquainted with and had opportunity to know the habits of Daniel, to have asked them the direct question whether or not he was an industrious, sober man. But it is manifest that when the witnesses said that he knew Daniel all his life, and was acquainted with his general reputation for sobriety and industry, and that Ms reputation in these respects was good, it was in substance and effect the same as if the witness h'ad directly testified from personal knowledge that he was a sober, industrious man. There is, of course, a distinction that may be taken and made between statements made by a witness as a matter of fact based upon personal knowledge, and statements based upon what the witness knows the general reputation of the person to be; but the error in the form of the question is too trifling to authorize a reversal.
The judgment is affirmed.