122 Ky. 614 | Ky. Ct. App. | 1906
OPINION by
— Reversing.
Mrs. Winifred Fuller, the wife of Charles E. Fuller, resided on A^est Market street, in Louisville, on January 6, 1904-, They applied to the Louisville GHas Company to take out the meter that was in the house and put in what is known as a “slot meter.” The gas company sent a man to make the change. Mrs. Fuller met him on the porch. The meter was in the- cellar the cellar was approached through-‘a trapdoor in the pantry; to go down into the cellar
It is insisted for the company that the verdict is against the evidence, and that she was guilty of contributory negligence, which brought about he? injury; but under the proof these are questions for the jury.
We see no objection to instructions 1, 2 and 3, given by the court. Instruction 4 is in these words: “Tf the jury find in favor of the plaintiff, Winifred Fuller, they should'assess such sum in damages as will fairly and reasonably compensate her for the injuries which' she sustained, including such sum as will reasonably compensate her for her pain and suffering, mental and physical, by reason of said injuries, and for any permanent injury, if any, which diminished her capacity for labor and the enjoyment of life caused directly by her fall into said cellar, in all not to exceed the sum of $10,000, the amount claimed in the petition.”
In L. & N. R. R. Co. v. Cleaver, 89 S. W, 494, 28 Ky Law Rep., 499, this court criticising an instruction substantially similar to the one above quoted, said: “The fault of this instruction is that it leaves to the jury to say, not only how much damages the plaintiff should recover, but to consider anything they might deem proper elements of such damages, except that the court advised them that among the elements of plaintiff’s damages they should consider
In L. & N. R. R. Co. v. Hall, 115 Ky., 567, 74 S. W., 280, 24 Ky. Law Rep., 2487, Where a similar instruction was given, the court said: “This court has frequently announced, in actions for personal injuries, where death does not ensue, that compensatory damages were confined to the expense of cure, value of time lost, and fair compensation for physical and mental suffering caused by the injury and for any permanent reduction of the power to earn money. Parker v. Jenkins, 66 Ky. 587; L. C. & L. R. R. Co. v. Case’s Administrator, 72 Ky., 736; C. P. Ry. Co. v. Kuhn, 86 Ky., 578, 9 Ky. Law Rep., 225, 6 S. W., 441, 9 Am. St. Rep., 309; Carson v. Singleton, 65 S. W., 821, 23 Ky. Law Rep., 1626. The instruction is erroneous, in that it does not confine the jury to the consideration of these elements of damage.”
In L. & N. R. R. Co. v. Logsdon, 14 Ky., 746, 71 S. W., 905, 24 Ky. Law Rep., 1566, the following instruction was given: “You should find for the plaintiff the damages which he sustained thereby, taking into your consideration the time he has lost, or may thereafter lose, if any, the pain and suffering he has
Judgment reversed, and cause remanded for a new trial.