56 S.W.2d 955 | Ky. Ct. App. | 1933
Affirming.
This is an action for personal injury tried before a jury in the Perry circuit court, in which Dr. M.W. Steele recovered a judgment of $500 against the Codell Construction Company and J.A. Committo Son.
For his cause of action Dr. Steele charged in his petition that on the 9th day of January, 1928, while riding horseback on the Hazard-Hindman highway, then under construction by the defendants, and crossing a *175 culvert constructed by them across the highway, the horse he was riding fell through the culvert and threw him off, his back striking a rock and seriously injuring him, from which he had suffered great mental and physical pain; that his injury was permanent, and by reason thereof he was unable to attend to business for several weeks.
The Codell Construction Company and J. A. Committo Son traversed the petition, and by paragraph 2. of their answer pleaded that the Codell Construction Company was a contractor and J. A. Committo Son were its subcontractors to construct the highway according to the plans and specifications of the State Highway Commission, and were, by reason thereof, acting as agents of the state, and therefore they were exempted of all liability. By paragraph 3 they pleaded contributory negligence on the part of Dr. Steele. In paragraph 4 they charged that Dr. Steele knew the highway was incomplete, defective, and unsafe for travel, and that the danger incident thereto was open and obvious, and that he knew before and at the time he went upon the culvert of its dangerous and unsafe condition, and by reason thereof he assumed the risk incident thereto.
A consideration and disposition of the questions presented require a presentment of the evidence. To be accurate, we quote a portion of the testimony of Dr. Steele, showing his view of how he sustained his injury. He stated:
"I was riding horseback from Hazard to Hindman, and about 11:30 o'clock I approached a culvert, about half a mile below Dwarf near Ben Engles home as I later learned. The culvert had no evidence of being unsafe, the top was smooth, but as the horse struck this culvert, he slipped and I was pitched forward as the horse plunged down. I don't know just what happened to the horse. One of his legs went through the culvert and I was pitched forward and I jumped to my right to avoid the recovery of the horse. I landed on that slick mud and fell backward across the edge of a rock. When I became able to obtain my footing, as I hit the ground, I slipped and I landed on that sharp rock and for some little while, I seemed to be unconscious. *176 When I regained consciousness I was lying there in the mud and I saw the horse standing on the left side of the road. As I started to get up I didn't see anyone anywhere, and then seeing the house which proved to be the home of Ben Engles, I was able to walk and lead the horse down to the house."
Elsewhere in his testimony he stated that "it was plain that the road was traveled a great deal over the crossing; that the top of the culvert was made of smooth pine boards, eight (8) feet in length; the eight (8) foot boards had been matched with two (2) foot boards. The two (2) foot board which tripped his horse had not been nailed. It was plain that the matching of the eight (8) foot boards with the two (2) foot boards was the cause of this trouble." The latter testimony of Dr. Steele was corroborated by other witnesses.
In behalf of the contractor and subcontractor, it was shown that the road was being constructed by them under a contract with the State Highway Commission. It was further shown that a detour had been constructed by the contractors, and at the intersection of the Hazard-Jackson road with the road going to Hindman a sign was erected reading, "Road under construction; travel at your own risk. Codell Construction Co.," and also about 300 feet before the detour was reached a sign which read, "Closed; Detour," was on a beech tree, with an arrow pointing to the detour. The detour was made by the subcontractors and paid for by the state. The temporary bridge on which Dr. Steele claims to have been injured was constructed for the purpose of hauling cement to prevent its getting damp in going through the creek, and was constructed by the subcontractors for that purpose. The plaintiff's testimony shows that the traveling public used both the detour road and the road over the temporary culvert. Carl Patton testified that on the date of Dr. Steele's injury and some time previous thereto he was engaged in carrying the United States mail, that on the date of Dr. Steele's injury the detour was filled up with dirt and had been for some time, and that he had been driving his mail wagon over the new road for two or three weeks, and that the public had been using the new road, including the culvert. *177
Dr. Steele suffered severe bruises to his back, at the top of his hip bone, near the spine. He suffered for several weeks, and now has to wear a brace to support his back and spine. He cannot now do any work of a surgical nature on account of his nervous condition. When submitting the issues to the jury, the court gave to the jury instructions Nos. 1, 2, 3, and 4. Instruction No. 1 directed to jury to find for Dr. Steele if it believed from the evidence the defendants negligently and carelessly constructed a temporary bridge, and negligently and carelessly permitted same to be and remain in a dangerous and unsafe condition, and permitted the public to use it while in this condition, and that, if it believed from the evidence that his injury was caused and brought about by reason of this negligence and carelessness, if any on their part, to find for the plaintiff such sum as will fairly and justly compensate him for pain and suffering caused by his injuries, and for the diminution of his power to earn money, if any, caused by his injury, not exceeding the amount sued for.
By instruction No. 2 it directed the jury that, if it believed from the evidence that Dr. Steele had notice or knowledge of the unsafe condition of the temporary crossing, or of such facts as would cause a person of ordinary prudence and caution to ascertain its condition, but despite his knowledge he attempted to cross it, to find for the defendants.
Instruction No. 4 defined Dr. Steele's duty respecting the detour, and instructed the jury that, if it believed from the evidence he failed to travel the detour and went upon and across the temporary bridge with knowledge of the existence of the "detour" he thereby assumed the risk, and it should find for the defendants.
As to the contention that the road was an original construction, being made under a contract with the State Highway Commission, and that the contractors were agents of the state, and therefore exempt from liability, the opinion of this court in Taylor v. Westerfield,
Instruction No. 2 advised the jury of its duty respecting assumed risk. The appellant offered an instruction presenting the same theory in different phraseology, and, if the court erred in giving to the jury instruction No. 2, the instruction offered by appellant being substantially the same as that given by the court, they are in no attitude now to complain of the act of the court in giving instruction No. 2 to the jury. The rule is universally accepted that a party cannot complain of an instruction given by the court containing the same vice as the one offered by him. Moise v. Burton,
An examination of the evidence convinces us that it was not shown that Dr. Steele was guilty of negligence that in any way contributed to the cause of the accident which produced his injury. "Contributory negligence" means an act or omission amounting to want of ordinary care on the part of the plaintiff, which, concurring with the negligence of the defendant, is the proximate cause of the injury. Chesapeake
O. Ry. Co. v. Conley,
Perceiving no error prejudicial to the substantial rights of appellant, the judgment is affirmed.