October 5, 2012

L. & N. R. Co. v. John H. Wilson, Rockcastle, 1881

Louisville & Nashville R. Co. v. John H. Wilson.

COURT OF APPEALS OF KENTUCKY

11 Ky. Op. 357; 1881 Ky. LEXIS 330; 3 Ky. L. Rptr. 469

December 3, 1881, Decided

PRIOR HISTORY:   [**1]  APPEAL FROM ROCKCASTLE CIRCUIT COURT.

DISPOSITION: Judgment affirmed.

COUNSEL: S. M. Burdett, Lyttleton Cooke, for appellant.

JUDGES: Judge Hargis.

OPINION BY: Hargis

OPINION

 [*358]  Opinion by Judge Hargis:

The evidence for appellee established negligence upon the appellant company, which failed to introduce any testimony. It admitted the contract of shipment, and while negligence is denied the failure of delivery is virtually confessed. In view of these facts the court properly instructed the jury that negligence had been proven, and to so find.

As the evidence conduced strongly to establish greater damages than were given by the jury in their verdict, even adjudging interest to it, the appellant was not prejudiced by the instruction to add interest to the sum of the damages and include both in the verdict.

As appellant failed to withdraw its answer before filing or causing the demurrer to be heard, the court did not err in overruling it because the answer cured the alleged defect in the petition.
Judgment affirmed.

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