30 S.W.2d 900 | Ky. Ct. App. | 1930
Affirming.
Jessie Garland instituted an action against the Black Star Coal Company to recover damages for personal injuries. He recovered a judgment for $1,000, which was reversed by this court because of error in the instructions given to the jury. Black Star Coal Co. v. Garland,
1. An amended answer was tendered by the appellant, but the court refused to file it. The new pleading was in three paragraphs. The first paragraph contained a traverse of the averments in plaintiff's pleadings. No harm came from refusal to receive the denials, since the allegations of plaintiff's pleadings were treated as traversed of record. The amended answer added nothing on that score. The second paragraph of the tendered answer pleaded that both parties to the action had duly accepted the provisions of the Workmen's Compensation Law, and that the relation of employer and employee was existing at the time of the injury. The failure of the pleadings to allege that the injuries complained of "arose out of and in the course of the employment" was a fatal defect. Section 4882, Ky. Stats.; Stearns C. L. Co. v. Smith,
2. Appellant argues that plaintiff's proof was insufficient to justify submission of the case to the jury, and that a peremptory instruction duly demanded by it should have been granted. The carefully prepared argument develops two grounds for the claim; first that no negligence of appellant was shown, and then that the contributory negligence of plaintiff was established as a matter of law. The contention was advanced when the case was considered before, and the court concluded that the evidence was adequate to require determination of the ultimate facts by the jury. That opinion constitutes the law of the case, binding on the appellate, as well as the trial court, unless the facts on the new trial were materially different. L. N. R. Co. v. Rowland,
3. The instructions to be given were indicated in the former opinion, and it is now contended that the new instructions failed to correct the defects pointed out in the old ones. The criticisms relate to an assumed failure of the trial court to submit to the jury in the first instruction whether the steps were unsafe and dangerous, and *207
that an omission respecting the use of the steps, and time for the repair of defects, left the directions to the jury vague and indefinite. The instruction conforms to the former opinion and the complaints of it are wholly without substance. The instruction submitted to the jury to find from the evidence (1) whether defendant failed to exercise ordinary care to maintain the steps in a reasonably safe condition for the purpose for which they were used, and (2) whether the steps, as a result of any failure so to do, became unsafe or dangerous, and (3) whether the defendant knew, or by the exercise of reasonable care could have known, of the unsafe or dangerous condition of the steps in time to have repaired them, and (4) whether as a direct and proximate result of such failure on the part of defendant, if any there was, the plaintiff was injured, and conditioned the right to recover upon a finding against defendant on all of the points embraced in the submission. The steps were used only for the purpose of crossing the fence, and the jury could not have been misled by a failure to specify that use. There was no controversy upon that particular point, and no claim that plaintiff was using the steps for any purpose other than to cross the fence. The express condition that the defendant must have known, or carelessly failed to know, of the unsafe or dangerous character of the steps, if any, in time to have remedied the defects, could be construed only as referring to the occasion of the accident as the time before which the knowledge must have been gained. It would be absurd to say that the jury could have understood otherwise when there is no other possible time to which it could have reference. The finding of the jury established that the defendant knew or could have known by the exercise of the care required of it, of the unsafe condition in time to have repaired it before the plaintiff got hurt. No request was made for any extension or modification of the instruction, which confirms the conclusion that none was needed. The general request, in a civil case, that the court instruct the jury upon the whole law of the case, is not sufficient to require any particular direction, and affords no basis for a complaint upon an appeal. Chas. Taylor Sons Co. v. Hunt,
4. It is contended that the plaintiff knew of the defects in the steps, and for that reason was precluded *208
from recovery for injuries sustained in using them. W. G. Duncan Coal Co. v. Lock,
The judgment is affirmed.
