130 Ky. 759 | Ky. Ct. App. | 1908
Opinion of the Court by
Affirming.
The appellee was injured in a collision between one of the trains of the Louisville & Nashville Kailroad Company and a wagon that he was driving across the railroad tracks where they intersect Twelfth street in the city of Covington. There is little, if any, dispute about the facts as they relate to the cause of the collision. The Covington & Cincinnati Railroad & Transfer & Bridge Company operated a railway extending into the city of Covington upon Twelfth street, over which the trains of the Louisville & Nashville Railroad Company were run. Twelfth street, at the point where it crosses the railroad track, is in a populous part of the city, and many vehicles using this street cross the railroad tracks at this intersection. For several years prior to the accident the bridge company maintained at this crossing safety gates in charge of a watchman, who was in the employ of the bridge company. The accident occurred about 8 o’clock in the morning, as appellee was driving west on Twelfth street and attempting to cross the railroad tracks. As he approached the crossing, he was driving in a slow trot. The gates were up and open; and, supposing that he could safely cross the tracks, he made the' attempt. Just as he reached the northbound main track, a
In regard to the size of the verdict, if appellee had not been entitled to punitive damages, the argument that the verdict is excessive would be entitled to more weight. He was awarded as compensation $3,000, and under the facts are not prepared to say that this sum was too large. At the time of his injury appellee was a man* about 29 years of age, strong, active, and healthy. A number of witnesses testified that after the injury his health was impaired, and his capacity to labor lessened. The trial judge, after hearing the evidence, believed that it- warranted him in submitting the question of whether or« not appellee was permanently injured to the jury as an element of the damage that he was entitled to recover if successful. That the submission upon this point was authorized by the evidence seems to- have been conceded by counsel representing both of the appellant companies, as we find that both o-f the appellant comip'anies, included in instructions offered by them as an element of damage to which plaintiff was entitled, the permanent reduction of his power to. earn money. But, aside from this view of appellee’s injuries, accepted as co-rretet by counsel and. the low'er court, we arq satisfied from an Examination- off the evidence
The failure to protect this crossing was not due to accident, or other- cause that could not well be autici -
A more difficult question is presented when it is attempted to fix the sum that in reason a jury may award. It is not practicable to say, even approximately, what amount of punitive damages a jury may assess in a case where this character of damages may be allowed. It is even more difficult of approximation and ascertainment than the correct measure of compensatory damages in personal injury eases. In the very necessity of things the amount must depend upon the facts and circumstances of each particular case. And so the amount that may be awarded as punitive damages must necessarily be left to- the sound discretion of a jury, although we do not mean to hold that a jury is at liberty to award any amount it may see proper as punitive damages, or
It is also argued that the jury erred in finding separate verdicts against the two defendant companies. We do not think so. Two or more wrongdoers, whose joint or concurrent acts of negligence have produced the injury complained of, may be joined as defendants in the same action; and there may be a joint or several verdict against them. The jury'may find in favor of one or more, and against one or more. They may also, the law and facts justifying it, assess punitive damages against one or more and compensatory damages against others. In
The instructions of the court on the subject of contributory negligence is also complained of, but we do not think it is subject to the criticism made. On the contrary, it submitted correctly this feature of the case.
The instructions which are as follows express our views of the law of this case as it should have been and was given to the jury.
“(1) It was the duty of plaintiff, Phillip B. Roth, in approaching the railroad crossing at Twelfth and Washington streets, in the proof described, to use such care as an ordinarily prudent person would exercise under the same or similar circumstances to discover the approach of trains and to keep out of their way.
“(2) It was the duty of the defendant, the Louisville & Nashville Railroad Company, in the. operation of its train at the time and place mentioned in the proof, to give such notice of the approach of its train to the crossing, to run its said train at such speed, to keep such lookout, and to use such care to avoid injury to persons thereon, as might usually be expected of ordinarily prudent persons operating a railroad under like circumstances.
“(3) It was the duty of defendant, the Covington
“(4) If the jury believe from the evidence that, as the train of defendant, the Louisville & Nashville Railroad Company, approached said crossing, in the proof described, said defendant’s agents and employes in charge thereof negligently failed to give such notice of the approach of said train to said crossing, or negligently failed to run its train at such speed, or negligently failed to keep such lookout, or negligently failed to use such care, as might usually be expected of ordinarily prudent persons -operating a railroad under like circumstances, in order to avoid injury to persons on or about to pass over said crossing, and that by reason of such negligent failure, if any, on the part of said defendant or its employes to so act or manage said train, the train collided with the wagon driven by plaintiff, and that by reason of such collision, and by reason of such negligent act or omission of said defendant’s employes, if any, plaintiff was injured, and if they further believe that plaintiff, when he drove on said track in front of said train, was himself in the exercise of ordinary care on his part, as hereinafter defined, the jury will find a verdict for plaintiff; otherwise, they will find a verdict for the defendant, the Louisville & Nashville Railroad Company.
“(5) If the jury believe from the evidence that the defendant, the Covington & Cincinnati Elevated Railroad & Transfer & Bridge Company, or its employe or agent in charge of said crossing, operating the gates at same, negligently failed to give rea
“ (6) If the jury find a verdict for the plaintiff, the measure of his damage will be a fair and reasonable equivalent in money for the physical pain, if any, and mental suffering, if any, which he has endured, and which it is reasonably certain he will in the future endure, if any, and for any permanent impairment or reduction of his power to earn money, if any as the direct and proximate result and plain consequence of the injuries sustained by him, if any- and, if the jury believe from the evidence that the negligence of the defendants, or either of them, if any there was, at the time and place referred to in the proof, was gross negligence, as hereinafter defined, then the jury may, in their discretion, governed by the proof, award plaintiff, against such defendant or defendants, a further sum by way of punitive damages or smart money, not exceeding in all, however, the sum of $20,000, the amount claimed in the petition.
“(7) If the jury shall believe that the defendant, the Louisville & Nashville Railroad Company, was negligent in the operation of its train at the time . when and the place where the plaintiff was injured,
“ (8) The court, instructs the jury that the plaintiff had no right to rely exclusively upon the operatives of the gates or. the railroad train in looking out for his safety and giving him notice of danger, but that the plaintiff was required to use ordinary care for his own safety; and, if he did rely exclusively 'upon the operatives of the gates or of the railroad train, without using ordinary care for his own safety, then he was guilty of contributory negligence, and your verdict must be for the defendants.
“(9) If the jury believe from the evidence that both of the defendants were negligent, under the instructions above given, and that such negligence, if any, of both defendants concurred in producing the injury to plaintiff, if any, and that plaintiff ought to recover damages against both defendants under the instructions herein, they may find a joint verdict against the Louisville & Nashville Railroad Company, and the Covington & Cincinnati Elevated Railroad & Transfer & Bridge Company, and they may then apportion such amount as they may so find between the defendants-, and find a separate ve.rdict against each defendant for the amount so apportioned against it; but in no event shall the recovery against both defendants exceed the sum of $20,000, the amount claimed in the petition.
“(10) Ordinary care as used in these instructions
“(11) Negligencé or negligently, as used in these instructions means the failure to exercise ordinary care.
“(12) Gross negligence is the failure to exercise slight care.
“(13) Nine jurors may find a verdict; but, if less than 12 unite in a verdict, all those so uniting must sign same.”
Tim judgment of the lower-court is affirmed.