Summary
In Saxton Coal Co. v. Kreutzer's Adm'x, 202 Ky. 387, 259 S.W. 1022, the agent whose testimony was held to be incompetent under section 606 was a defendant to the action.
Summary of this case from Powers v. Gatliff Coal Co.Opinion
Decided January 21, 1927.
Appeal from Whitley Circuit Court.
HENRY C. GILLIS for appellants.
POPE BROWNING and H.L. BRYANT for appellee.
Affirming.
Appellants seek to reverse a judgment of $4,000.00. This is the second appeal in this case. See 202 Ky. 387, 259 S.W. 1022. There is no substantial difference in the evidence upon this appeal from that on the former. Both parties endeavored to make a stronger case this time than before. In a measure, the administratrix succeeded. The defendant failed. The evidence of four witnesses on whom the Saxton Coal Company depended to show Kreutzer was told not to work at this place, was read from their evidence on the former trial. The evidence of S.R. Daugherty, testifying for himself to a conversation with the deceased, was incompetent. See Combs v. Roark, 206 Ky. 454, 267 S.W. 210. They had one other witness, but his evidence is so much at variance with the evidence of the others, and his conduct on cross-examination was such that his evidence is unimpressive.
The evidence of these witnesses is not without contradiction, hence not conclusive.
We said the same of the evidence of the witness Utz in the L. N. R. Co. v. Philpot's Admr., 215 Ky. 682, 286 S.W. 1078.
The judgment is affirmed.