192 S.W.2d 717 | Ky. Ct. App. | 1946
Reversing.
Appellant operates a coal mine in Whitley County; appellee is one of his employees and, at the time of the accident hereinafter described, was engaged as a hostler or helper for the operator of a coal cutting machine. On the night of September 19, 1944, a piece of metal designated as a rope-guide, weighing approximately *582 fourteen pounds, slipped off of the cutter bar of the coal cutting machine; was thrown a distance of 10 or 12 feet; and struck appellee on the right jaw, resulting in a fracture to the jawbone and the loosening of one of his teeth. After the fracture healed, the jawbone was distorted to such an extent as to prevent perfect occlusion of the lower and upper teeth. Upon submission of the case under instructions for temporary injuries, the jury returned a verdict in appellee's favor in the sum of $8,154.
Many grounds for reversal are urged on this appeal, the first of which is that the petition is defective. On this point, the petition alleges that "the rope-guide or chain and bar on the coal cutting machine broke, gave way, or came off, and suddenly and with great force and without warning, hit and struck the plaintiff." That the coal cutting machine was old, defective, and utterly unfit for use, was dangerous, and had been in such condition for many months; and all of which was either known, or, by the exercise of ordinary care on the part of the defendant, could have been known to him. No demurrer was filed to the petition, nor motion made to make it more specific; nor did appellant move the Court to enter a judgment notwithstanding the verdict. Objection to the pleadings was not filed until after the verdict was rendered, and first was presented as a ground for a new trial. The petition is rather loosely drawn, but the issues presented by the evidence were met by appellant without any claim of surprise. The petition is defective in form only; that is to say, the facts presented by the evidence were defectively stated in the petition. A defect or omission in a pleading, which would have been fatal on a demurrer, is cured by the verdict where the issue as joined required proof of the facts defectively stated or omitted. Bickel Asphalt Paving Co. v. Yeager,
The next objection is that the evidence fails to support the verdict. Witnesses introduced by appellee testified that a hook on the rope-guide was made of material too soft to resist the force applied to it; that the prong of the hook pulled out of its curve into a position too straight to maintain its fixed position. As a result of this defect, which appellee's witnesses testified was *583
known to appellee's superiors in authority, the rope-guide was released, was propelled through the air, and struck appellee on the jaw. Appellant had not chosen to operate under the Workmen's Compensation Act, KRS
The objection to the instructions presents a more serious complaint. Instruction No. 1 recites:
The sole issue presented by the evidence is whether appellant failed to furnish appellee with a safe appliance with which to work. Instruction No. 1, supra, erroneously presented an issue in respect to an unsafe place in which to work; and this instruction and Instruction No. 3 erroneously permitted the jury to find for appellee, if they believed from the evidence that appellant had failed to employ a certified foreman in the mines, and as a result of which appellee was injured. KRS
By Instruction No. 2, the jury was told that it was the duty of the plaintiff to exercise ordinary care for his own safety, although the Court failed to state the verdict to be rendered in the event that he failed to exercise such care. Since contributory negligence is not available as a defense to the action, this instruction was erroneous, although it was not prejudicial to appellant. Instruction No. 3 relates to Instruction No. 1, and directs the jury to find for plaintiff if they should believe the defendant failed to exercise any of the duties set out in the first instruction. It is erroneous to the same extent that Instruction No. I is erroneous. Instruction No. 4 prescribes the measure of damages, and complaint is made that it is defective in form. The instruction is subject to this criticism, although we believe the jury could not have been. misled by the language used. By Instruction No. 6, the jury was told that ordinary care means such care as an ordinarily prudent person would use for his ownsafety or that of another under the same or similar circumstances as those proven in this case, and that the absence of such care is negligence. The words emphasized should not have been included in the definition. On the next trial, the Court will give the following instructions, in the absence of a proffered instruction for permanent injuries:
Our attention is now directed to the complaint in respect to the introduction of incompetent evidence. When appellee admitted that he did not, of his own knowledge, know what struck him, his testimony gleaned from remarks of others that the rope-guide came loose should have been withdrawn from the consideration of *586
the jury. It was likewise erroneous for the Court to permit appellee to read the X-rays taken by Dr. Lovett; the X-rays should have been introduced by the doctor upon a showing that he was qualified to interpret the pictures. Indian Creek Coal Co. v. Walcott,
Finally, it is argued that counsel for plaintiff was guilty of misconduct, in arguing as substantive evidence testimony which the Court, by admonition, restricted to consideration for the purpose of affecting the credibility of a witness. It is unnecessary to go into detail in respect to this complaint; it is well founded, and, on the next trial, counsel for appellee will govern himself accordingly.
Since the case must be reversed for the reason hereinbefore set out, we deem it unnecessary to discuss the alleged error of the Court in failing to grant appellant a continuance; and since, upon the next trial, the medical testimony might differ and the amount of the award likely will not be the same, we specifically reserve the question raised in respect to excessive damages.
The judgment is reversed, with directions that it be set aside and appellant be granted a new trial, to be conducted not inconsistent with this opinion. *587