122 Ky. 818 | Ky. Ct. App. | 1906
OPINION OF THE COURT BY
Reversing.
The appellee, Mrs. Annie Eaden, alleged in lier petition that in September, 1903, wMle slie was standing at or near a private crossing of the Louisville So Nasliville Railroad Company, in Hopkins county, Ky., which was appurtenant to the farm a
The court, on the trial, instructed the jury as follows: (1) The court instructs the jury that if they believe from the evidence that a locomotive fireman, an employee of the defendant, while engaged in the discharge of his duties as such' fireman, did negligently throw live coals or hot-embers from one of its engines while said engine was. passing a private crossing on W. A. Nesbet’s farm, and that the plaintiff was at the time standing upon the said crossing for the purpose of passing over the same, and that the said fireman knew, or by the exercise of ordinary care would have known, when he threw said coals or embers, of the presence of the plaintiff upon the crossing, and of the danger, if any, that would or might result to- the plaintiff from such coals or embers., and that such coals or embers struck the plaintiff and burned her forehead, eyes, cheeks, or nose, to her injury, they will find for the plaintiff; but, if the jury from the evidence believe to the contrary upon any of these propositions., they will find
After the verdict was rendered appellant entered a motion in arrest of judgment, Which was overruled. This ruling of the court is now urged as a ground of reversal. It is also insisted that the judgment is contrary to the evidence; that the second instruction, which contains the measure of damages applicable to the case, is erroneous, in that it permits the jury to find damages for the permanent injury of appellee, when there is no- evidence in the record of such permanent injury having been inflicted, and that it permits the jury to find punitive damages against the appellant, which is unwarranted by the evidence adduced upon the trial. Of these in their order.
We do not think this case is controlled by the principle enunciated in Louisville & Nashville R. R. Co. v. Routt, 76 S. W., 513, 25 Ky. Law Rep., 887, and Sullivan v. Louisville & Nashville R. R. Co., 115 Ky., 447, 24 Ky. Law Rep., 2344, 74 S. W., 171, 103 Am. St. Rep., 330. In both of these eases it was distinctly held — and it was the turning point in the' opinions — that at the time the injury complained of was inflicted the employes were not in the exercise of any duty they owed to their employers. In the first, the fireman wantonly threw a lump of coal at
Nor are we' prepared, from all the evidence in this case, to1 say that the verdict is so flagrantly contrary to the weight of the evidence as to warrant a reversal of the judgment on that ground. The jury constitutes the tribunal established by law to try disputed questions of fact, and they are peculiarly adapted to perform this duty. The personality of the witness counts for much on such occasions, and conviction as to truth does not depend on the number of witnesses or their station in life. The appearance and deportment of one witness may make Ms testimony outweigh that of a dozen others, and therefore wie cannot say that our opinion on the facts should be substituted for that of the jury, who saw and heard the witnesses.
•"We are, however, of opinion that the trial court erred in authorizing the jury to find damages predicated upon the permanent injury of appellee’s eyes. A careful reading of the record fails to disclose to our satisfaction evidence sufficient to warrant a submission of the question of • the permanency of appellee’s injury. It is true she has chronic sore
The. instruction as to the exemplary damages was correct. If appellee’s statement is true with reference to the manner in which she was- injured, the negligence of the employee was gross almost to the point of wantonness.
For the reasons, given, the judgment heirein is reversed, for proceedings consistent with this opinion.