189 S.W.2d 397 | Ky. Ct. App. | 1945
Affirming.
On November 17, 1943, appellee, Ben Brock, was injured while at work for appellant, Elcomb Coal Company. Appellant had not elected to operate under the Workmen's Compensation Law; therefore, the pleas of contributory negligence, negligence of a fellow servant, and assumed risk are not available in defense of the action. KRS
The place wherein Brock was required to work was extremely dangerous, unless each workman carefully observed the duties imposed upon him in the circumstances. The motorman testified that had Brock directed him, as the latter testified he did, the former was sufficiently close to have heard the warning. That being true, if Brock did sound the warning, as he testified he did, the jury had reasonable grounds to infer, which it evidently did, that the motorman was not listening for the signal, and therefore was negligent in the operation of the train. That being true, it is apparent that the evidence was sufficient to submit the issue to the jury, and to sustain the verdict of the jury which was rendered in favor of appellee.
It is next contended that the verdict of $4,000 is excessive. The medical testimony for appellee showed that the broken collarbone, after healing, was not in proper alignment, and that appellee could not raise his arm *401 above his shoulder. Brock testified that this condition was caused solely by the accident, and that previous to the accident he had full and free use of his arm. Appellant introduced evidence to the effect that previous to the accident Brock was suffering from neuritis in the arm he claims now is limited in motion, and that the limitation of motion was caused solely by this disease. If the evidence for appellee be true, and the jury believed it to be, he is permanently disabled to do the work he is trained to do, viz., loading coal in a mine. That being true, the verdict cannot be said to be excessive, or to have been the result of passion or prejudice.
It is finally insisted that the Court erred in his instructions to the jury, in that the defendant did not get the benefit of Instruction H, which was given by the Court. The Court instructed the jury as follows:
The contention of appellant seems to be that Instruction I permitted the jury to find for appellee, if they believed appellant's motorman was negligent under Instruction G, although the jury might likewise have believed that appellee was guilty of negligence under Instruction H. As we have hereinbefore remarked, the defense of contributory negligence is not available to appellant; and if any negligence is shown on its part to have been the proximate cause of the injuries, it is liable to appellee in damages. Instruction I did not permit any recovery unless the jury believed negligence on the part of appellant to have been proven. That being true, the instructions were not prejudicial to appellant, although Instruction I would have been in better form, had it concluded with the following direction: "If the jury shall find for the defendant under Instruction No. H, it will say so, and no more."
We perceive no error prejudicial to appellant's substantial rights.
The judgment is affirmed.