
    Nashville, Chattanooga & St. Louis Railway Company v. Byars.
    (Decided October 16, 1931.)
    
      NUNN & WALLER, SELDEN Y. TRIMBLE, COLEMAN & LANCASTER, and FITZGERALD HALL for appellant.
    J. C. SPEIGHT, E. P. PHILLIPS and JOHN RYAN for appellee.
   Opinion op the Court by

Hobson, Commissioner

Reversing.

While appellee was riding in a car with her mother and her brother, the car was struck by a railroad train of the appellant at a crossing within the city limits of Murray, Ky. Her mother and her brother were killed. Appellee was very painfully injured and brought this action to recover for her injuries against the railway company and Jámes Herring. In her petition she stated her cause of action in these words:

“Plaintiff says that the defendant, James Herring, was engaged as engineer in operating a certain passenger train for defendant railway company on the 3rd day of December, 1927, and that he together with defendant railway company, its servants, agents and employees, on said date, while engaged in the business of running and operating an engine and train of cars attached thereto on its line of railway in and through Calloway County andonear Murray, Kentucky, negligently and carelessly ran its engine and train over an automobile in which plaintiff was at the time riding and thereby crushed broke and mangled ber body and permanently disabled ber and rendered ber a cripple for life.”

On tbe first trial of tbe case tbe jury returned a verdict in favor of tbe plaintiff for $11,000, and returned no verdict against Herring. Judgment was entered on tbe verdict in ber favor against tbe company for $11,000 and ber petition against Herring was dismissed. Tbe railway company appealed from that judgment, but appellee did not appeal from tbe judgment dismissing ber petition against Herring, and that judgment is final. On tbe appeal of tbe railway company to this court, tbe judgment for tbe plaintiff was reversed on tbe ground that it was palpably against tbe evidence. 233 Ky. 309, 25 S. W. (2d) 733, 734. After stating tbe proof on both sides as to negligence in the operation of tbe train tbe court said: “But tbe preponderance of tbe evidence was largely in favor of appellant, and we have reached tbe conclusion that tbe verdict of tbe jury was flagrantly against tbe weight of tbe evidence on tbe question of tbe negligence of appellant.” Then after stating the evidence on both sides on the question of contributory negligence, tbe court said: “Tbe verdict was flagrantly against the evidence on tbe question of contributory negligence ; but tbe court properly overruled a motion for a directed verdict, as it was a question for tbe jury. All questions not specifically dealt with in this opinion are reserved.” Nashville, C. & St. Louis Railway Co. v. Byars, 233 Ky. 309, 25 S. W. (2d) 733, 735. Tbe case was returned to tbe circuit court, and tried again, resulting-in a verdict and judgment in favor of tbe plaintiff against tbe railway company for $8,500 and costs. The company appeals.

Tbe evidence on tbe second trial as to all tbe essential facts is practically tbe same as on tbe first trial. While appellee introduced'three new witnesses, their testimony was cumulative and did not show any material fact not shown by tbe evidence on tbe first trial. Tbe essential facts being practically tbe same, tbe opinion on tbe former appeal is tbe law of tbe case. Tbe rule is well settled that tbe opinion of this court on tbe first appeal is conclusive on tbe parties in subsequent proceedings as to tbe issues upon which tbe evidence is substantially tbe same. The fact that there was, as usual, more or less discrepancy in details in tbe testimony on tbe two trials, does not affect tbe rule, if tbe salient and controlling facts shown by tbe testimony on both- trials are the same. Helm v. Cincinnati, N. O. & T. P. R. Co., 156 Ky. 240, 160 S. W. 945; Doherty v. First Nat. Bank, 161 Ky. 202, 170 S. W. 615; Wilson v Caughlin, 187 Ky. 221, 218 S. W. 1010. The verdict here is therefore against the evidence and a new trial should be granted.

After the petition was filed the plaintiff took the deposition of James Herring as upon cross-examination. On the second trial of the case, when James Herring was no longer a party to the action and when he was in the courthouse as a witness in the case, the plaintiff offered to read the deposition of James Herring theretofore taken. The defendant objected, but the court allowed it read. Section 554 of the Civil Code of Practice provides: “A deposition may be read upon the trial of an issue in any action, if, at the time of the trial, the witness reside twenty miles or more from the place where the court sits in which the action is pending; or be absent from this State.” James Herring resided more than twenty miles from the place where the court sat and his deposition might have been read if he had not been present in court. But the statute does not mean that the deposition of a witness who is present in court may be read if he resides more than twenty miles away. The purpose is that the jury shall see and hear the witness if practicable, and while the deposition may be read if the witness is not present, it cannot be read when he is present; unless after proper foundation laid it is read to contradict the ¡witness on trial, as in other cases. Johnson v. Fowler, 4 Bibb, 521; Beall v. Bethel, 11 Ky. Op. 567; Kentucky Tobacco Association v. Ashley, 5 Ky. Law Rep. 184; Dailey v. Lexington, Etc., Co., 180 Ky. 679, 203 S. W. 569; 8 R. C. L. 1136, 1137.

In his concluding argument to the jury the plaintiff’s attorney said over the objection of the defendant:

. . That they ought to return a substantial verdict in plaintiff’s favor against the defendant, in order that the defendant might in future be warned and prevented from passing the Concord Boad Crossing at an excessive rate of speed, and for the. protection of the people of Calloway County, and to prevent further and other accidents in future at that point.”

An argument, practically to the same.effect, was condemned in Consolidated Coach Corporation v. Garmon, 233 Ky. 467, 26 S. W. (2d) 20. _ The court should have sustained the defendant’s objection to the argument.

All other questions are reserved.

Judgment reversed, and cause remanded for a new trial.  