198 Ky. 127 | Ky. Ct. App. | 1923
Opinion op the Court by
Affirming.
Otto Upchurch, an infant twelve years of age, was employed by the Whitson Lumber Company to haul lumber from its sawmill to its yard a short distance away. This was done by an iron truck drawn uipun a tramway by a mule, he driving the mule and assisting in unloading the lumber. It appears that some loose plank were scattered along the driveway, and he says that the company’s agent promised him to move them out of the way.
In the early morning of his second day at work, while walking beside the truck, his pants leg caught on a plank, and he was thrown between the rails under the truck, onel of the wheels running upon his left f.bjg-h. breaking the \ .Jjpne, He shouted to the mule and it stopped with the wheel still upon his leg, and in an endeavor to extricate him therefrom the truck was run over the other foot sajjdmnkle and they were badly mashed. He was confined to EnTbed for weeks and'~w^_lmable to get around for two or three months, and is now badly crippled. His left „ -las’ is bent and shortened byjave-jjiches, while hTs~HgJxc ankle is swollen, the Epnesmbis foot misplaced and he is suffering” from fallen archesT ’ '
For these injuries, by his father as next friend, he brought suit in the Wayne circuit Court against the company and recovered judgment for $10,000.00.
It complains in this appeal (a) that he was guilty of contributory negligence, (b) that he has aggravated* his damages-in refusing to undergo a second treatment, (c) error in instruction, (d) that the verdict is excessive.
Dr. Hill, the physician who waited upon him, is not a licensed physician in this state, and it is claimed that it was contributory negligence on the boy’s part to not procure another physician. The injury occurred at an isolated point near the Tennessee line. Both the father and the company’s foreman endeavored to get medical assistance without avail, and finally, at the suggestion of. the
An injured adult is only required to exercise ondinary care and prudence in the selection of his physician, and must accept such as the country affords. Certainly no more could be required of this helpless twelve-year-old boy lying crushed and mangled, as he was for hours. 8 R. C, L., page 449; C. C. R. Co. v. Saxby, 68 L. R. A. 164; L. & N. R. R. Co. v. Mount, 31 Rep. 211. Even if the father had been able to procure another physician and negligently failed to do so, this negligence could not be imputed to the boy.- A. C. Co. v. Massey, 163 Ky. 792; L. & N. R. R. Co. v. Wilkens, 143 Ky. 576.
In addition to this the company’s foreman was participating in the matter and not only did not object to Dr. Hill but actually sent for him himself, and the company is in no position to complain. It is urged that the boy was placed on a sagging cot, that the weights were removed from his feet and a pillow placed under his leg, which caused it to cup upward. While there is evidence to this effect it was stoutly denied 'by the appellee and his witnesses and the question of contributory negligence in all respects was submitted to the jury under instruction No. 3, which reads as follows:
‘ ‘ The court instructs the jury that if they believe from the evidence that the injury or injuries to the plaintiff, Otto Upchurch, were materially increased or aggravated by failure, if any, on his part to use such personal care in the effort to effect a cure as would have been used or employed under similar circumstances by a boy of the age, capacity and experience of Otto Upchurch, they should not allow him any damages that may have resulted from such aggravation, if any, to his injuries.”
Two officers of the company severally testified that they visited the boy’s parents and in his presence proposed to send him to the hospital for retreatment, and that the company would pay his expenses, or that they would have a surgeon visit him and treat him at home. This treatment was outlined by three physicians, who testified that the fractured limb -could ha. rebrnken and straightened, making it just a little shorter than the other leg; or that by breaking it and grafting a, bone nnnn it. jt coulfThp pvlpnrTed to ifUofígu^^
It may be considered as a general proposition of law that where a person claims damages resulting from the negligence of another and it is shown that by a practical treatment he can reduce his injuries or secure relief from them without serious danger to himself, it is his dujy to do so, or to have his damages minimized in proportion to the amount his injuries would have been reduced by such treatment, less the cost of treatment and compensation for the pain occasioned thereby; but we are not aware of any decision where it has been held that such a course is a condition precedent to a recovery of damages. At any rate one is not required to take the risk of *a serious surgical operation for the benefit of the wrongdoer, and his failure to do so does not reduce his verdict to merely nominal damages. 8 R. C. L. 488; L. & N. R. R. Co. v. Kerrick, 178 Ky. 491; Stewart Dry Goods Co. v. Boone, 180 Ky. 205.
• Indeed, it has been held that under such circumstances a refusal to undergo a serious and critical surgical operation could not be considered in mitigation of damages. Mattis v. P. T. Co., 6 Pa. Dist. 94,19 Pa. Co. Ct. 106. On the issue of fact as to this proposition and as to the appellee’s duty as affecting the measure of damages the court instructed the jury:
“If you believe from the evidence that the plaintiff’s injuries could be lessened and improved by surgical operation without attendant risk of failure and of death, then you are instructed that you may consider the probable result that might be obtained in the mitigation of damages you are authorized to find under instruction number one, but if you believe that such operation would be successful and improve the condition of plaintiff, then you are authorized to consider as damages to the*131 plaintiff such, loss of time, pain and suffering and expense as might be incurred by reason of such operation.”
This instruction appears as favorable as appellant could ask. So that, in the last analysis, the real question is as to whether or not the verdict is excessive. It is for a large sum, and if the injuries are of the character that he could be practically restored under the conditions above set out the verdict might seem excessive, while if he is to go through life in his present condition it is not unreasonable. C., N. O. & T. P. Ry. Co. v. Nolan, 167 Ky. 11; C., N. O. & T. P. Ry. Co. v. Goode, 169 Ky. 102; Gnau v. Ackerman, 166 Ky. 258.
In this respect it will be observed that issues of fact were raised as to these matters and submitted to the jury, and it was their province to determine as to the advisability of a surgical operation and its attendant risks, as / well as to the result to be obtained thereby, and we are/ not prepared to say that their verdict strikes one at first/ blush as a result of passion or prejudice.
Judgment affirmed.