| Ky. Ct. App. | Oct 24, 1912
Opinion op the Court by
Affirming.
This is the second appeal of this- case.- The facts aré fully-set forth in'the opinion on the former appeal, which is to be found in 143 Ky., 765" court="Ky. Ct. App." date_filed="1911-05-23" href="https://app.midpage.ai/document/cincinnati-new-orleans--texas-pacific-ry-co-v-troxell-7138783?utm_source=webapp" opinion_id="7138783">143 Ky., 765.
Upon that appeal, the case was reversed because of error in the instructions, and in -returning the case to the lower court- for another trial, the following direction was -given: - - '
“On the next trial,- if the evidence be the same, the court, will tell the jury that, if- they believe from the evi
“These instructions, together with the one upon contributory negligence, and the one upon the measure of damages, as hereinbefore indicated, will be all that will be given.”
Upon the last trial, the court followed the directions given in said opinion, and gave only the instructions indicated. The trial resulted in a verdict for the plaintiff, and the company again appeals.
It is insisted' that the instruction defining contributory negligence was prejudicial, and that for this reason the railroad company is entitled to a reversal. The instruction given upon this point, is as follows:
“It was the duty of the plaintiff to exercise ordinary care for his own safety, and if you shall believe from the evidence that at the time he was injured he failed to exercise that degree of care for his own safety and by reason of that failure, if any, helped to cause or bring about the injury complained of, and but for which failure, if any, he would not have been injured', the law is for the defendant and you should so find.”
It is insisted that this instruction is not broad enough and fails to inform the jury as to the duty which plaintiff owed to himself, in going upon the railroad track, at the time and place he received his injury, and a number of decisions of this court are cited in support of this contention. Strictly speaking, the criticism of this instruc
The issue in this case was, in no wise, complicated; and the instructions, as a whole, are simple and easily understood. By instructions one and two, the jury were told that the plaintiff might recover, under certain conditions, and by instruction three, that he could not recover unless, at the time of his injury, he was exercising ordinary care for his own safety. This meant, as explained in instruction four, the exercise by himself, at that time, of that degree of care, which an ordinarily prudent person would exercise when similarly situated.
We are satisfied that the verdict of the jury would have been the same, if the instruction on contributory negligence had been given in the language asked for by appellants’ counsel. Under these circumstances, we do not feel warranted in disturbing, or setting aside, the deliberate judgment of twelve men, especially chosen to pass upon and determine the rights of the parties in this litigation. They had the witnesses before them, and applying the facts, brought out in the evidence, to the law of the case as given by the court, said, as did a former
Judgment affirmed.