103 Ky. 182 | Ky. Ct. App. | 1898
delivered the opinion oe the court.
The appellant, Henderson & Corydon Gravel Road Co., owns a gravel road upon which toll is charged. On the 22d day of October, 1804, the appellee wras traveling on the road in a wagon drawn by a horse and mule. He was thrown from his wagon and his leg broken, from which he suffered, physically, mentally, the loss of time, and incurred expense, etc. He averred that in injury resulted because the road was in an unsafe and dangerous condition; that he exercised due care in traveling on the road, and the injury nowise resulted from his negligence or want of care. The answer denied that the road was in an unsafe condition, or that the injury resulted to the plaintiff by reason of the unsafe condition of the road, etc.
It is urged that the court erred in not sending the jury to view the place where the accident occurred. (As to whether the jury should have been sent to view the place, was a matter in the discretion of the court. The court must always determine from the peculiar facts in each case as to whether it is necessary for the jury to view the premises, to enable them to get a proper understanding of the case. The code provides that whenever, in the opinion of the court, it is proper for the jury to have a view of the real property which is the subject of litigation, or of a place at wthich any material fact occurred, it may order the jury to be conducted to it. (Civil Code, Sec. 318.)
In this case the court properly exercised its discretion, because several months had elapsed since the accident, and! the pile of gravel in the road, which in part, according to the claim of the plaintiff, caused the injury, had been spread,
The appellant claims that the court erred in allowing witnesses for the plaintiff to give their opinion as to whether the road was in an unsafe condition at the time of the accident. Without pausing to consider whether the court erred in allowing such testimony, it is sufficient to say that we have been unable to find where the appellant made any objection to such testimony; and it also introduced a number of witnesses who gave the same kind of testimony.
It is urged that the court should have required the plaintiff to make a diagram and cross-section of the defendant’s road at the place where the accident occurred as he gave his testimony. It does not appear that the plaintiff had the ability to do such a thing, besides that had been done by a civil engineer; and the diagram made by him was used on the trial. It was offered by the appellant, and the accuracy of which was not questioned. We think the court gave the law of the case. Under the instruction of the court the jury could not find for the plaintiff, unless they believed that the plaintiff’s injury resulted from the unsafe condition of the road. They were told! that if the injury resulted from the want of ordinary care on the part of the plaintiff or the misconduct of his team, and not by the unreasonably unsafe condition of the road, they should find for the defendant. The law required the appellant to keep its road in a reasonably safe condition, and if this was done the plaintiff was
Tbe court did not err in failing to give tbe jury an instruction on tbe question as to whether the 'defendant’s agents knew of the unsafe condition of the road, or that they had such knowledge for such time that would reasonably enable them to have repaired the road. The answer denied that the road was unsafe. All the proof which the defendant offered which bore upon the question of the condition of the road, tended to show that it was not in an unsafe condition. The defendant did not attempt to defeat a recovery for the want of knowledge that the road was in .an unsafe condition, neither did the defendant ask an instruction upon the question.
The judgment is affirmed.