140 Ky. 488 | Ky. Ct. App. | 1910
Opinion of the Court by
Reversing.
The appellee in her petition against the appellant company to recover damages for personal injuries alleged to have been sustained by the negligence of its employes, charged that she was driving south in a buggy on a road partly occupied by the tracks of the company when one of its traction cars coming north on its track frightened the horse causing him to back the buggy on to the track in front of the approaching car, that struck it, thereby causing her to be thrown out on the ground. That the employes operating the car saw or by the exercise of ordinary care could have seen that her horse was frightened and unmanageable and was backing the vehicle towards the track when they were at least one hundred feet from her and in ample time to have stopped the car and prevented a collision, but that the employes in' charge of the car and who were running the same at a high rate of speed, made no attempt to stop or prevent the collision until, the car came within a few feet of the vehicle, and when it was too late.
She averred that by reason of the negligence mentioned: “She was seriously and permanently injured about the hip and limb and her said injuries are permanent and will cause her to be a cripple for life, and her body was otherwise bruised and injured 'from which injuries she suffered, and continues to be sick, sore and disabled,. and suffered and still suffers great pain and distress, to her. damage in the sum of one thousand dollars. That she has been incapacitated and prevented from carrying on her usual occupation that of a washerwoman, from which she received eight dollars per week for a period of six weeks, to her futher damage in the sum of $48. That she has necessarily expended the sum of $25 in endeavoring to be cured of her said injuries and will hereafter necessarily expend the sum of $25 for further necessary medical treatment.
She prayed judgment for the sum of $1,098. The answer was a traverse and plea of contributory negligence, to which a reply was filed.
The evidence in behalf of appellee conduced to show that the collision occurred as stated in her petition, while the evidence for appellant company tended to show that
A trial resulted in a verdict and judgment in favor of appellee for $500, and a reversal is asked for reasons that will be noticed in the course of the opinion.
The court in instruction No. 1 told the jury that: “If they believe from the evidence that at the time the plaintiff, Ellen Ingles, was injured by the defendant’s car, if she was so injured, that the employes of the defendant who were in charge of said car, saw or by the exercise of ordinary care could have seen there was danger of said car striking the plaintiff’s wagon, unless the said car should be stopped, and that after they saw or could have seen by the exercise of ordinary care such danger, they could have stopped said car in time to have prevented such collision, but failed to do so, and because of such failure on the part of said employes the plaintiff sustained the said injuries, and that at said time and place the plaintiff herself was exercising ordinary care for her own safety, the jury ought to find for the plaintiff.”
In instruction No. 3 they were tol'd that: “They should award her such a sum as she has necessarily expended for medical treatment in endeavoring to be cured of such injuries and as she will hereafter necessarily expend for that purpose, if any, and in addition thereto such a sum as will fairly compensate the plaintiff for any suffering, mental or physical, which she has endured and' which it is reasonably certain from the evidence she will endure as a direct and proximate result of her injury, if any, and for any loss of time occasioned by said injury, and for any reduction of her power to earn money, not exceeding in all the amount of $1,098. ’ ’
The objection made to instruction No. 1 by counsel for appellant is that it imposed upon the company a higher duty than the law exacted. The argument being that the motorman in charge of the car was only obliged to exercise ordinary care with the means at his command . to stop the car after he discovered or in the exercise of ordinary care could have discovered the peril in which appellee was placed, whereas the instruction authorized the jury to find the company guilty of negligence if they
It is also pointed out as error that the court failed to give an instruction defining “ordinary care,” but a sufficient answer to this objection is that no instruction upon this subject was requested. If counsel for appellant desired an instruction upon this point, they should have requested one, and failing to do so it was not reversible error for the court to omit the instruction. If such an instruction had been asked, we have no doubt the court would have given it. L. & N. R. Co. v. Harrod, 115 Ky. 877; South Covington & Cincinnati Ry. Co. v. Core, 29 Ky. Law Rep. 838; Nicola Bros. v. Hurst, 28 Ky. Law Rep. 87.
So much of instruction No. 3 as refers to the amount of damage the jury might allow on account of medical
But the instruction permitted the jury to award her “such a sum as she has necessarily expended for medical treatment in endeavoring to be cured of such injuries, and as she will hereafter necessarily expend for that purpose, if any.” In other words, although the appellee limited the sum she desired to recover on account of medical expenses to $50 the instruction permitted the jury to award her any sum that she had or would necessarily expend for that purpose. If the evidence had shown that the appellee had expended less than $50 for medical treatment up to the time of the trial, and that she would not be obliged to expend any further sum for such purpose, the instruction would not have been prejudicial. But the physician who attended upon her testified that his charge against her up to the time of the trial would be $60 or $70, and that “according to the appearance of the injury at the time of the trial, she needs to be under the supervision of a physician right along; she needs to have that place there dressed by herself or a physician; a physician ought to see her at least once or twice a week for an indefinite period of time.” It will thus be seen that the jury might well have concluded that appellee would be obliged to expend a large sum of money for medical treatment, and under the instruction they had the right to give her on this account any ainount they believed she would be required to pay out for this purpose. How much of the sum awarded appellee was given to compensate her for money that had been or might have been expended by her for medical services of course does not appear, but it is fair to assume that the jury took into consideration in assessing the damages the statements of appellee’s physician' upon this point and in making up the amount of the recovery allowed a sum in excess of $50 for medical treatment.
In considering the error in the instruction relative to the amount of damages that might be allowed for lost time, it must be kept in mind that- the petition averred that the appellee “had been prevented from carrying on her usual occupation that of a washer-woman, from which she received $8 per week for a period of six weeks, to
“Of course the same item of damage should not be allowed twice. The meaning of the instruction is that the plaintiff should have compensation- for his lost time while sick and for any permanent reduction of his power to earn money thereafter. The jury could not have understood that, in fixing compensation for permanent reduction in power to earn money, the time plaintiff lost while laid up was to be considered. This was temporary disability, and might be much greater than the permanent reduction of his power to earn money. The permanent reduction of the power to earn money refers to the, state of facts existing after the temporary condition has passed away.”
The instruction given in the Barrickman case was approved in L. & N. R. Co. v. Logsdon, 114 Ky. 746; C. N. O. & T. P. Ry. Co. v. Silvers, 126 S.W. 120; South Covington & Cincinnati Ry. Co. v. Core, 29 Ky. Law Rep. 836; City of Georgetown v. Groff, 136 Ky. 663; Cumberland Telephone & Telegraph Co. v. Overfield, 127 Ky. 548, and many others.
And so if the petition charges in appropriate language that the injury is permanent, and that there is a permanent impairment of the power to earn money, and in addition seeks to recover damages for lost time, and the sum expended in effecting a cure, and the evidence shows that the expenditure for medical purposes and the claim on account of lost time ended before the trial, the jury should be instructed to allow the plaintiff such a sum as they may believe from the evidence will fairly compensate him fo.r the value of the time lost, if any, by reason of the injury, for the amount expended if any in effecting a cure, for physical and mental suffering, if any, endured by him or that it is reasonably certain he may endure as a direct result of the injury, as well as for any permanent reduction of his power to earn money, not exceeding the amounts claimed in the petition But if requested, the court should add that the allowance, if, any, for impairment of power to earn money should begin when the allowance if any for time lost ended. If the injury is permanent, and the plaintiff at the time of the trial is totally disabled from performing any labor or service, but will ultimately fully recover except as to the permanent injury, the instruction if the pleadings and evidence authorize it should permit the jury to allow
Wherefore the judgment is reversed, with directions for a new trial in conformity with this opinion.