128 Ky. 90 | Ky. Ct. App. | 1908
Opinion op the Court by
Reversing.
Appellee, who was a passenger on one of appellant’s trains, was injured by the derailment of the train at a point; near Zion station on the line of its railroad between Cincinnati and Louisville. In an action brought by her to recover damages for injuries received the jury returned a verdict in her favor for $10,000.
A number of errors alleged to have been committed by the trial court are relied on as ground for reversal; but we will not notice any of them at length, except the one relating to the amount of damages awarded. The instructions are criticised, but they presented to the jury with admirable clearness the law of the case; and no error was committed in this respect. Much is also said about the misconduct of appellee’s counsel in continuing to ask questions that the trial court had ruled incompetent. It is improper for counsel to persist in asking questions that the court has ruled to be incompetent; the purpose being to impress the jury with the importance of the facts that have been excluded from their consideration. When the court has sustained an objection to a question, it is the privilege of counsel to make an avowal as to what the witnesses would say if permitted to answer, and this avowal he has the right to have put in the record
It is not necessary to discuss the cause of the accident as fee company did not offer any reason or excuse for it. It was probably due to- the fact feat fee train was running at a high, dangerous, and reckless rate of speed on the downgrade of a road full of sharp curves.
In considering fee amount of damages assessed, and for the purpose of illustrating the fact feat it is excessive, it will be necessary to relate with some particularity the evidence bearing upon this question. Appellee at the time of her injury in April, 1906, was a single lady about 21 years of age. Previous to the accident she had uniformly enjoyed good health.', and had been a wage earner for several-years. Her occupation was that of an actress-, but she had given up the continuous practice of that profession, and opened in Cincinnati a school at which she taught elocution, fencing, and physical culture. There is some conflict in the evidence as to fee amount of money she derived from her school; appellee placing the sum at about $1,700 a year. When injured, she was on her way to Carrollton, Kentucky, wife a troop of players for the purpose of giving there a theatrical performance. Within a few hours after the wreck appellee and her company proceeded by another train to Carrollton, where that night they gave fee prom
.Weighing the evidence of the doctors who testified, we have reached the conclusion that it is doubtful if the injury sustained by appellee is permanent, and, even if it be assumed that it is permanent, the decided weight of the testimony is that appellee can obtain relief from the pain and suffering produced by it by undergoing an operation that will not be attended with serious results. Taking this view of the case, the remaining question is: Are the damages so excessive as to warrant us in setting aside the verdict upon this ground? In this connection, we may add, that, although loss of time and loss of money growing out of the inability to perform one’s usual duties or engage in one’s usual pursuits or vocations is an element of damage to be considered in cases of this character, the loss of time and consequent loss of money shown in this case is not sufficient to warrant the judgment recovered by appellee. There is, indeed, no evidence that, if appellee’s injuries are restored by the healing influence of time or by an operation, she will not thereafter be as fully equipped physically
In Louisville Southern R. Co. v. Minogue. 90 Ky. 369, 14 S. W. 357, 12 Ky. Law Rep. 378, where a verdict for $10,000 was recovered for personal injuries consisting of internal bruises., a severe.shock to the nervous system., and partial paralysis of one leg from the knee down, the court said: “The probable duration of her injuries is not shown by the testimony. "Whether they are of a permanent character does not appear. The medical testimony, which was introduced, is utterly unsatisfactory in this respect. The burden rested upon the appellee to show the extent of her injuries. If of a permanent character, she should have shown it. A persual of the evidence created no satisfactory opinion upon this point, and leaves the matter in entire doubt. The physicians who testified say she may recover entirely, and she may not. * *■ ■* The opinion of a jury has been, and properly, no doubt, regarded as' the best means of even a fair approximation, and every verdict should be treated, prima facie, as the result of honest judgment upon their part.. They are the constitutional triers of the facts of a case, and courts should exercise great caution in interfering with their verdicts. Litigants must not be' left, however, to their arbitrary will, and be without remedy in oases where verdicts can be accounted for only upon the theory that they are the result of an improper sym pathy, or unreasonable prejudice. In such cases it is one of the highest duties of a court to interfere,
Following the rule announced in these cases, and applying them to the facts of this case, we see no escape from the conclusion that the verdict is excessive, and for this reason a new trial is granted.
Wherefore the judgment of the lower court is re