144 Ky. 166 | Ky. Ct. App. | 1911
Opinion op the Court by
— Affirming.
While walking along the street near her home in the City of Louisville, Mrs. Mary Bender was struck in the stomach by a bundle of papers thrown from a car of the defendant railway company by one of its employes. Alleging that the blow seriously and permanently injured her she sued to recover damages because thereof, on the theory that the employe of the company was negligent in so throwing the papers from the car as to strike her. The company denied liability, and upon a trial before a jury plaintiff recovered a verdict for $500. Conceiving that the amount is grossly inadequate and that the court erred in the admission of evidence and in instructing the jury, she seeks a reversal of the judgment predicated upon that verdict.
The evidence complained of as incompetent and prejudicial was that of the motorman and conductor to the effect that they had not been instructed by the company to carry and deliver the bundle of papers which was thrown from the car and which was alleged to have struck
“It is insisted for the plaintiff that these instructions were erroneous, and should not have been given. We need not consider whether the instructions were proper or not. The jury found the defendant guilty of negligence. By their verdict they in effect found that none of the facts set out in the instructions complained of, existed.”
In Netter’s Admr. v. Louisville Ry. Co., 134 Ky., 685, a judgment was affirmed although the instructions were erroneous, the court holding that they were not prejudicial. The evidence complained of, although incompetent, was not prejudicial.
Appellant also complains that the instruction on the measure of damages was not proper because the jury was not by it authorized to award any sum for special damages. No special damages were pleaded. The petition alleges that the plaintiff was compelled to contract and
Plaintiff would be in no position to complain of this fact even if an instruction had been authorized. No instruction was asked authorizing an award for special damages, and the instruction given on the measure of damages being correct as far as it went, under the rule repeatedly announced by this court, if the plaintiff had desired an instruction on the subject of special damages she should have asked for it, and, having failed to ask for it, may not now complain because it was not embodied in the instruction given.
Lastly, it is urged that the judgment should be reversed because the damages awarded do not equal the actual pecuniary loss sustained. In support of this contention the statement of the doctor that his bill, when made out, would be from $700 to $1,000, is relied upon. This statement can not be received as an element of damage and can not enter into a determination of the question of the pecuniary loss sustained by appellant. With this statement eliminated we are not prepared to say that the award of the jury was not full compensation for the injury which appellant sustained. True, she testifies that she suffered great and excruciating pain. Her family physician, who waited upon her for some ten or twelve days following the accident, found nothing serious the matter with her; and there is much in the testimony of the physician upon whom she most relies to have justified the jury in questioning his competency. At all
Judgment affirmed.