142 Ky. 217 | Ky. Ct. App. | 1911
Opinion of the Court by
Affirming.
Baymond D. Crawford, a little boy nine years old, brought this suit against the American Engineering and Construction Company to recover damages for an injury sustained by him from being kicked by one of its mules, working in a wagon on one of the streets of Douisville. The little boy with some friends was playing on the street, and as he passed near the mule, was kicked by him: The action to recover damages is based on the ground that the mule was a dangerous and vicious animal with a propensity to kick those who might come about him • that this was known to the defendant and its servants, and with this knowledge they used the mule upon the streets, and negligently permitted the children to come near it without warning them of the danger, and by reason of their negligence in this regard, the little boy was suffered to come near the mule on the street without warning, and he was thus injured. There was sufficient evidence of the dangerous character of the mule and of negligence on the part of the defendant’s servants in charge of the team in suffering, the little boys to come about it'without warning, to take the case to the jury. Hnder instructions which are not complained of, the jury found for the plain
Two grounds are relied on for a reversal. The child was kicked by the mule in the. stomach, and fell upon his head with such force as to cause concussion of the ■brain. He was quite sick for some days, was delirious from the blow upon the head, and vomited and suffered considerably from the blow in the stomach. After three or four weeks he recovered sufficiently to return to school. The injury occurred on the 22d of December, 1908; the following spring, in March or April, he showed signs of deafness. At first he was deaf in the left ear, but at the trial in December, 1909, he was also deaf somewhat in the right ear. At the time of the trial he still suffered pain from the injury, and had been under treatment of a physician since the injury occurred. The physician who treated him stated on the trial in substance that the concussion of the brain indicated congestion or inflammation, and if the child had congestion or inflammation where the auditory nerve passes, it would be reasonable that he would be deaf. His hearing was good before the injury and the deafness set up afterwards and in the time that it might reasonably be expected to result. The defendant introduced two physicians who testified that they had made an examination of the child; that his hearing was as shown by the proof for the plaintiff, but that the deafness was not due to any trouble with the auditory nerve, and was due to a catarrhal affection. It is insisted for the defendant that the verdict of the jury is palpably ag’ainst the evidence, but we can not say that it is. The credibility of the witnesses is peculiarly for the jury. The jury had a right to accept the conclusion of one doctor rather than the conclusions of the two others. It was a matter of opinion, and we can not say that the jury abused a sound discretion in crediting the physician who had treated the child from the time of his injury, rather than the other two who had examined him shortly before the trial. He received a very painful injury and under all the evidence had suffered a great deal. We can not.say that the verdict for $1,000 is so excessive as to warrant us in disturbing it.
It is also insisted that the official stenographer was guilty of misconduct on the trial in this: That he sat directly in front of the jury and facing them, and by look and gesture addressed to the jury during the trial,
Judgment affirmed.