133 Ky. 41 | Ky. Ct. App. | 1909
Opinion of the Court by
Affirming.
Plaintiff, Henry C. Bruner, instituted' this action against the Seelbach Hotel Company, the Seelbach Realty Company, and George Wolf to recover damages for personal injuries alleged to have resulted from the negligence of defendants. The jury returned a verdict in favor of the Seelbacli Hotel Company and G-eorge Wolf, and from the‘judgment based thereon the plaintiff prosecutes this appeal. Plaintiff’s grounds for reversal are (1) .that the verdict is flagrantly against the weight of the evidence; and (2) that the court erred in its instructions to the jury concerning the liability of the Seelbach Hotel Company. *
The petition charges that bn the night of July 25, 1907, while plaintiff was standing at or near the intersection of Fourth and Walnut streets, the defendant G-eorge Wolf, with gross and wanton carelessness, negligence, and recklessness, and while in
The testimony for the plaintiff was to the effect that he. was injured while standing, on t-he corner of Fourth and Walnut streets. Suddenly-a beer bottle descended, and struck.him with great-force on the left shoulder. Some facts were stated -which would go to show the probability of .the bottle having come from the, roof garden conducted byj the -Seelbach Hotel Company. Plaintiff at the time lie was.injured was talking to Ur. Ben L. Bruner, his brother. As soon as plaintiff was struck, - Dr. Bruner ■ immediately rushed up .to the roof gardem There he met the defendant Wolf, .and asked -him if • he -threw, the bottle. Wolf replied that he did, but he did not mean any harm-by it. Wolf then handed Dr. Bruner his card .with his name, George Wolf,-on it. About a week later Wolf and his wife called on plaintiff at the Hast building, and Wolf told the plaintiff, in the presence of the latter’s brother, Dr. Ben L. Bruner,
Taking as true the statement of the plaintiff and his brother, Dr. Bruner, to the effect that the defendant Wolf stated that he threw the bottle in question, it is manifest from the whole record that Wolf was very much intoxicated at the time, and had no' distinct recollection of the matter. If he did make the statement, he must have made it upon information given him by others. That being the case, Wolf’s statement that he had thrown the bottle would not neecssarily be conclusive of the fact. Furthermore, even according to Green’s statement, he mistook Dale for Wolf within a few minutes after the occurrence took place. This fact alone was sufficient to raise in the minds of the jury a doubt as to his identification of Wolf as the man who threw the bottle. According to the testimony of defendant’s witnesses, it was not a case merely of mistaken identity, but Green actually charged Dale with having thrown the bottle.. Several witnesses who claimed that they were in position to see and were watching Wolf testified that he did not throw the bottle. Others said that he was not drinking bottled beer, but the beer which- he drank was served him in glasses. Wolf’s liability depended upon the sole question whether or-not he threw the bottle. This issue was presented to the jury in the instructions, which are not subject to criticism. The jury heard the evidence on both -sides, and- observed the attitude and demeanor of the witnesses, while' testifying, and we are unable to say that their finding was flagrantly against the weight of the evidence. Perhaps, if we had occupied the -place of the jury, ,we-. might have reached a different conclusion; that fact, however, would not be-sufficient to'justify a reversal of -this case. In'a-long line--of decisions this-court has adhered-to the uniform rule that it is-- only where the verdict is flagrantly ■ against the _ weight of; the evidence that a reversal will be directed. The facts
But it is further insisted that the instructions relating to the liability of the Seelbach Hotel Company are erroneous. In instruction No. 1 the jury were told that, if they believed from the evidence that George Wolf- threw the bottle on the occasion in question, they should find for the plaintiff. Instruction No. 2 was the converse of instruction No. 1. Instruction No. 3, which is complained of by counsel for appellant, is as follows: “If the jury shall believe from the evidence that the defendant George Wolf did throw the bottle from the roof garden on the occasion in evidence referred to, and that the plaintiff was thereby injured, and if you shall further believe from the evidence that the defendant Wolf was at and prior to Ihe time that he threw the ■bottle in the roof garden'of the defendant Seelbach Hotel Company, and that he was intoxicated, and that Ms manner and behavior were.such as would indicate to a man of average prudence operating the roof garden that he (Wolf) might throw a bottle or other missile from the said garden to the street below, and that these facts were known, or by the exercise of ordinary care could, have been known, to the defendant Seelbach Hotel Company, or its agents, or any of them, controlling the roof .garden, then it became the duty of the defendant and of its agents to remove .the said Wolf from the said roof.garden or otherwise control him, and that' the law in that event is for the plaintiff against the said Seelbach Hotel Company.”- Instruction No. 4 is the converse of instruction No. 3: -The question, then,' is: Does instruction No. 3 present'the law-as applicable to the facts of this ‘case The first objection to-the. instruction is the use of the expression, “known, or by the exercise of ordinary care could have been known to the defendant Seelbach Hotel Company, or its agents, or any
Becognizing the rule above laid down, let us see whether or not the instruction complained of covered the law of the case. There might, of course, arise a case where the conduct persisted in by .the guest was such as would probably result in injury to others. The guest might, show by his conduct that' he was violent; that, unless restrained, he would injure some one. In such a case it might not be necessary that the innkeeper should know that, the guest was going to commit the particular act resulting in, the injury, for instance, that he was going to cut another with a knife, or shoot another with a pistol.
For the reasons given, the judgment is affirmed.