132 Ky. 385 | Ky. Ct. App. | 1908
Opinion op the Court by
Reversing.
On a former appeal of this case the opinion states the facts as then appearing and the law applicable to them. As the case then went off on a peremptory instruction, the plaintiff’s case only appeared. Bevis v. Vanceburg Telephone Company, 121 Ky. 182, 89 S. W. 126, 28 Ky. Law Rep. 142. On a return of the case the issue was submitted to the jury, resulting in a verdict and judgment for appellee.
The case is, briefly summarized, that Miss Bevis, while driving in the night time along one of the public roads of Lewis county, was severely injured by the buggy’s running against one of appellee’s poles, which was situated in the road, and it is claimed so far out in. or near the traveled way as to imperil persons using the highway when driving vehicles by that point. It may be conceded that the presence of the telephone pole was a nuisance, in the nature of a purpresture. Appellant did! not lmow of its existence. Her companion, who was driving the. buggy, and who had entire control of it for the purposes of the trip, is not shown to have been aware of the situation of the pole. In attempting to drive around1 and pass a buggy ahead of them, the horse was pulled to one side of the road, whereby the buggy was brought into contact with the pole, throwing appellant out, and injuring her as stated. In the former opinion it was said that the driver’s negligence, if there was any, was not to be imputed to appellant. There is1 no evidence of appel
There was a plea of contributory negligence; but, as there was not evidence to support it, the trial court did not instruct the jury on that score. The court did instruct the jury, however, that, before the plaintiff was entitled to recover a verdict, they should believe from the evidence that the plaintiff was herself in the exercise of ordinary care for her own safety, in addition to believing the establishment of the various ingredients of actionable negligence on the part of the defendant. The question is whether the interpolation of the condition as to plaintiff’s exercising due care for her own safety was proper, and if not, whether it was prejudicial. In this jurisdiction contributory negligence is a defense, and to be available must be pleaded, and, if an issue is made, must be proved. It is defined as being the failure by the plaintiff to exercise ordinary care for his own safety, but for which the injury would not have occurred, notwithstanding the defendant’s negligence. The law endeavors to fix th'e responsibility upon the agent of the proximate cause. There is no dividing it, resting it partly upon one concurrent cause, and partly upon another, wherd the plaintiff’s own negligence is one of the concurrent causes. The rigidity of this rule
In pleading it is not unusual to charge that plaintiff, while in the exercise of due care for his own safety, was injured by the defendant’s negligence in certain named particulars; but such an allegation is not necessary. Louisville & Portland Canal Company v. Murphy, 9 Bush, 522. While the plaintiff may needlessly plead that, whilst he was in the exercise of due care, by the defendant’s negligence, in this, etc., he was injured and damaged, etc., he would have nothing added to his preliminary burden to
We must remain in doubt as to the effect of the ■error upon the jury. There were two trials — one resulting in a disagreement of the jury. The jury ■on this ease were taken to the place of injury to inspect the location of the pole. There was some evidence, as stated, that plaintiff and her companion were traveling very fast. We cannot say that the .jury may not, from these facts, have inferred that plaintiff was not exercising ordinary care for her own safety, by not controlling the actions of her companion, or attempting to do so. But, if they regarded that at all, they must have given that clause considerable weight in arriving at their verdict. We conclude that the error was prejudicial.
There is no' ground for punitive damages in the case.
Judgment reversed, and remanded for a new trial under proceedings not inconsistent herewith'.