Louisville & Nashville Railroad v. Williams' Administrator

197 S.W. 455, 177 Ky. 20, 1917 Ky. LEXIS 532

Opinion

Opinion of the Court by

William Rogers Clay,

Commissioner — Granting petition for modification of opinion.

In onr former opinion, we held that appellee, who was plaintiff below, failed to make ont a case for the jury, and reversed the judgment for a new trial consistent with the opinion. Appellee now asks that the opinion be modified and the judgment reversed with directions to dismiss the petition. The petition for modification of the opinion is based on the following facts: Plaintiff desires a review of the decision of this court by the United States Supreme Court. To that end a final judgment is necessary. He concedes that on another trial, the evidence will be the same, and that the trial court, following the opinion of this court, will direct a judgment in favor of the appellant. In order to save the unnecessary trouble and expense of another trial, he is now willing for this court to direct that the petition be dismissed.

While it is our practice in common law suits where this court is of the opinion that the plaintiff failed to. make out a case, to reverse the judgment for another trial consistent with the opinion, this rule is solely for the benefit of the plaintiff, who may be able on another trial to supply the evidence necessary to make out his case. Where, however, as in this instance, the plaintiff concedes that on another trial he will be finable to make out a case under the opinion of this court and petitions the court to modify its opinion and direct that plaintiff’s petition be dismissed, we conclude that the petition for a modification of the opinion should be granted.

Wherefore, that part of the former opinion reversing the- judgment for a new trial consistent with the opinion, is withdrawn, and the judgment is reversed with directions to dismiss the petition.