| Ky. Ct. App. | Jun 5, 1923
Opinion of the Court by
— Affirming.
J. M. Lancaster brought this suit against tbe American Bailway Express Company to recover for injuries to bis person and to bis automobile. Prom a verdict and judgment in bis favor for $800.00 tbe express company appeals.
In addition- to a denial of tbe allegations of tbe petition, and a plea of contributory negligence, appellant filed an amended answer setting forth certain provisions of tbe traffic ordinance of Cincinnati, and alleging that said ordinance became effective on .October 7, 1920, and bad ever since been in force throughout tbe boundaries of tbe city. Afterwards, appellee filed an amended petition setting forth other provisions of tbe same ordinance.
Tbe accident occurred at tbe intersection of Pike and Pearl streets in Cincinnati. According to appellee and bis witnesses, appellee was driving a Pord car west on tbe right band side of Pearl street between tbe street car tracks and tbe curb. When within a short distance from tbe comer, appellant’s truck, which bad been going south on Pike street, cut tbe northeast corner and collided with tbe Pord. On tbe other band, appellant’s witnesses say that a-s tbe truck turned to go east on Pearl street, it kept to the right of tbe center of the intersection, and that appellee drove into tbe truck.
It is first insisted that the court erred in assuming in its instructions that a violation of the traffic ordinance of Cincinnati was .negligence, without any proof that such was the law of Ohio. Though it may be true that the legal effect of the ordinance, as applied to the facts, was not properly pleaded, there was no objection to the pleadings on that score, and it is apparent from all that occurred on the trial that both parties not only relied on the .ordinance in question but assumed that a violation of its provisions would constitute negligence. Indeed, appellant offered the ordinance in evidence, and asked an instruction based on its provisions. While this instruction was not given, another instruction embodying the same provisions was given. Therefore, if it bé conceded that the court erred in the respect complained of, it is clear that appellant was responsible for the error, and is not now in a position to complain.
Another insistence is that the instructions did not impose upon appellee the duty to exercise ordinary care in the management and control of his machine, or properly present the defense of contributory negligence. While there may be slight ground for criticism of the instructions on this score, yet, as they fully apprised the jury of the obligations and duties of appellee in approaching the intersection as well as the obligations and duties of the driver of the truck in approaching the intersection and making the turn, and thus presented in a concrete form the facts that would authorize a recovery, as well as the facts that would constitute a defense, we are convinced that the error complained of was not prejudicial to the substantial rights of appellant.
It is also insisted that the verdict was excessive. The whole finding was $800.00. The damage to the machine was $175.00. The medical bill was $50.00. Appellee’s principal injury was to his knee. The attending physician found the knee swollen and very painful to the touch. In his opinion, one or more of the ligaments had been strained or turned. Speaking from experience, the knee joint, when once hurt, remains, more or less weak. In doing straining work, it becomes painful and loses a part of its mobility. According to his best judgment, the injury to appellee’s knee would be likely to last him through life. On the other hand, the physicians who testified for
Judgment affirmed.