Keiffer v. Louisville & Nashville Railroad ( 1911 )

Opinion of the Court by

Judge Lassing

Affirming.

This is the second appeal of this case. The opinion on the former appeal is found in 132 Ky., 419. It was there held that the trial judge should have peremptorily instructed the jury to find for the defendant, as, under the state of facts proven, plaintiff failed to make out a case. The facts are fully stated in that opinion.

Upon the last trial the evidence as to how the collision occurred was practically the same as upon the former trial, and at the conclusion thereof the court instruct ed the jury to find for the defendant, which was done. Plaintiff appeals.

The chief ground relied upon for reversal is the failure of the trial court to permit the depositions of three Tennessee lawyers to be read to the jury. These depositions are in the record. No exceptions- were filed to them, and the trial court must have rejected them because he regarded them as irrelevant or incompetent. In the former opinion it is stated that:

“By the law of Tennessee, the men on one train in the service of the railroad are fellow-servants of the men on another train, and no recovery can be had by one for an injury due to the negligence of the other.”

Plaintiff’s counsel interpreted this language to mean that he must lose his case unless he could show that the law of Tennessee was different from what it was proven to be on the former trial, and hence he offered the depositions in question.

Technically speaking, the court should have permitted these depositions to be read, for, as said by this court in P. C. C. & St. L. R. R. Co. v. Austin’s Admr., 141 Ky., 722:

“We do not take judicial knowledge of the law of another State. What is the law of another State, is a fact to be shown by evidence, and we must decide the case upon the evidence in the record on the subject. (Union Central Life Insurance Co. v. Dukes, 132 Ky., 370; L. & N. R. R. Co. v. Smith, 135 Ky., 462; Yellow Poplar Lumber Co. v. Ford, 141 Ky., 5.) If the Supreme Court of Indiana in its later opinions has relaxed the rule laid down in its earlier opinions, appellee should introduce evidence to show this. A court of this State-cannot go through all the decisions of the Supreme Court of another State and determine for itself what the law of that State is. When a witness is introduced in a case pending here, and states that certain opinions of the Supreme Court of another State establish a certain proposition, as the proper construction of a writing is a question for the court, not the jury, the court trying the case may read these decisions itself and determine their ef-feet. But it cannot disregard the conclusion of the witness when it has not before it the facts upon which the witness bases his conclusion. When a witness testifies to the law of another State, he may be required on cross-examination to state on what decisions of the Supreme Court of the State or other authority he bases his judgment, and to file with his deposition copies of the opinion or authority relied on. When the witness refers to the. opinions of the Supreme Court of another State as the basis for his conclusion, and files a copy of the opinions with the deposition, or where the books are accessible to the trial court, and by consent of parties he gives the style of the case and page of the book where it is found, then the court trying the case may read the opinion or opinions so designated, and see if they support the conclusion of the witness. Where the testimony is conflicting as to what the law of another State is, and the witnesses reaching conflicting conclusions, give the opinion of the State Court on which their conclusions are based, a court of this State may, in an action.pending here, read the opinion so designated for itself, and determine what is the proper construction to be placed upon them. In such an event the court should instruct the jury as to the law of the ease just as he would instruct the jnry as to the law of the case when governed by the laws of this State. In other words, the court must then determine what the law of the other State is by reading the indicated opinions themselves, and tell the jury what is the law of the case. (2 Wharton Conflict of Laws, Sec. 773.)”

The foregoing excerpt from the Austin case is the latest enunciation of this court upon the subject, and while that opinion was subsequently withdrawn, it was upon a question of practice, which in no wise affected the question under consideration.-

An examination of these depositions shows that, in all material respects, the law of Tennessee is as proven before, and the trial court, evidently having reached this . conclusion, rejected them. If he had permitted them to be read he would have had to pass upon their sufficiency and determine whether or not they showed the law of that State to be different from wbat it bad been proven to be npon tbe last trial. In order to determine whether or not they should be read to the jury, he considered them, and was of opinion that the Tennessee cases cited by these witnesses confirmed, rather than overthrew, the statement of the Tennessee law as found in the former opinion. Hence it would have been but idle form to have permitted the depositions to be read. A judgment should not be reversed except for substantial errors.

Much time and consideration is given by counsel in an effort to show either that the leaky engine or the failure or neglect of the company to notify those in charge of Keiffer’s train of the breakdown of the train in front of them was the proximate cause of his injury. On practically the facts presented in this record, upon the former appeal, we said that the leaky engine was not the proximate cause, but that it was either the negligence of the flagman on the first train or that of Keiffer and his associates on the second train;, and, under the rule repeatedly announced by this court, that opinion is the law of this case, and we will not again enter upon a consideration of those questions, as they are settled. Gray Tie & Lumber Co. v. Farmers Bank, 24 Rep., 2319; Wilson’s Assignees v. Louisville Banking Co., 25 Rep., 1065; Fidelity & Deposit Co. of Md. v. Same, Id.; A. Booth & Co. v. Bethel, 25 Rep., 1747.

Under the former opinion, plaintiff, in order to have his case submitted to the jury, must have presented either a different state of facts, or shown that the law of' the State of Tennessee upon the same state of facts was different from what it was proven on the former trial. The evidence presented met neither of these necessary prerequisites, and the judgment is, therefore, affirmed.

Judge Nunn dissenting; Judge Settle not sitting.