142 Ky. 382 | Ky. Ct. App. | 1911
Opinion of the Court by
Affirming.
This is an appeal .from a judgment of the Graves circuit court, awarding appellee $1,999 for injuries sustained through the alleged negligence of other employes of the appellant company. The facts out of which the
Considering the fact that he had been compelled to go to an expense of $205 for medicine and medical treatment, and had lost three months’ time, for which he sought to recover $95 (leaving but $1,699 as compensation for his pain and suffering and the permanent impairment of his power to earn money) it is apparent that the claim on the part of appellant, that the verdict is grossly excessive, can not be seriously considered. In fact, according to the weight of the testimony, the injury for which appellee had to undergo the operation was a serious one; and that he has suffered greatly because thereof, there is no room for doubt. As it is apparent that he will hereafter suffer and be greatly incon
Appellant complains of the instructions on the measure of damages, and insists that in the form given it permitted the jury to award double damages, in authorizing a. recovery for such.time as the appellee has lost and it. was reasonably certain he would lose, and also for the permanent impairment of his power to earn money, and -cites and relies upon the case of the Blue Grass Traction Co. v. Ingalls, 140 Ky., 488. In that case it is expressly stated that if an instruction along the line indicated in Iris brief by appellant is desired, it must be requested. No such request was made, and hence the failure of the ■court to give this instruction can not be relied upon as reversible error.
Appellant’s most serious contention is that the court permitted the plaintiff to recover for the failure on the part of the appellant’s servants in charge of the work to exercise ordinary care for his safety. Whereas, it is most earnestly contended, no recovery could be had under such circumstances, except for the failure to exercise slight care, i. e., except for gross negligence. As between employes associated together in the conduct of the work, the principle contended for by appellant has been frequently applied, and in such cases no recovery can be had except the negligence be gross. But as to employes in a different department of the service, ordinary negligence may be, and frequently is held to be sufficient to justify a recovery. In L. & N. R. R. Co. v. Brown, 127 Ky., 732, this rule is thus stated:
“But when the servant is injured by employes of the same master, who are not directly associated with him, and with whom he is not immediately employed, anct whose qualifications for the place they occupy he has no means of knowing, and in whose selection he has no voice, and over whose conduct and actions he has.no •control, and against whose carelessness and negligence he can not protect himself, he may recover damages from the master for injuries received through their negligence, whether it be ordinary or gross, and without any reference to the position or place the servant causing the injury holds.”
We do not pass upon the question as to whether or not the punitive damage instruction was authorized, for we are satisfied that no more than compensation was allowed, and such instruction was not prejudicial.
Judgment affirmed.