203 Ky. 231 | Ky. Ct. App. | 1924
Opinion of the Court by
Reversing.
At about twelve o’clock on May 21, 1921, between Twenty-fiftb and Twenty-fourth streets on Portland avenue in the city of Louisville a street car of the appellant and defendant below, Louisville Railwav Company, collided with the Ford automobile of appellee and plaintiff below, Gilbert DeMarsh, and damaged it, as well as inflicted some injuries on plaintiff, to recover for which he filed this action alleging that the collision was the result of negligence of defendant, its agents and servants in operating the street car. A denial and a plea of contributory negligence was contained in the answer, and upon trial the jury, under the instructions given by the court, returned a verdict in plaintiff’s fávór for 'the sum of $3,630.00, $3,000.00 of which was for personal injuries sustained by him, including Ms physical and mental pain and suffering. Defendant’s motion for a new trial was overruled and it has appealed, relying for reversal upon two principal grounds, which are: (1), that the item of $3,000.00 composing a part of the verdict is excessive, and (2), error of the court in giving and refusing instructions.
As a prerequisite to an understanding of both of the grounds relied on it will-be necessary to make a brief statement of the facts as contended for by both sides to the controversy. Plaintiff testified that he had been
Upon the extent of plaintiff’s personal injuries he testified that he was not knocked out of the automobile nor was any of his passengers, although one of them was sitting on one of its doors. He also testified that he was thrown with considerable force against the steering wheel which he was operating and it produced a bruise on his stomach and the jar likewise wirenched or sprained his back, which was thrown against the rear of the seat, producing a surface bruise on that part of his body. He was carried to the office of a nearby phy
Prom the testimony, as so substantially outlined, we are constrained to the conclusion that the amount of $3,000.00 returned by the jury was excessive. We are fully cognizant of the fact that the assessment of damages for such injuries is a question for the jury, and that quite a wide latitude is allowed it in the discharge of that duty; but, after all, the jury is not permitted to invade the field of speculation or to base its verdict on surmises not supported, by some tangible and substantial testimony. Of course, it might be that it will eventually turn out that plaintiff sustained some secret or hidden injury which has not yet developed, but he failed to show by the testimony he introduced on the trial any reasonable probability of such a possibility and without it the jury was not authorized to take into consideration any such remote consequence.
Among the. universally recognized duties of a street railway company is that it must operate its cars on the streets of a city at a reasonable rate of speed, and to.thereby have them under such control as that those in charge of them may check their speed and if necessary
Instruction 2, given by the court on its own motion, defined the duty of plaintiff in operating his automobile on the streets and said to the jury that if he failed to perform any of the outlined duties, “or if the jury shall believe from the evidence that the plaintiff brought his automobile upon the track of the defendant and in front of the street car so suddenly and so close to the car, that the mortorman in charge thereof, and while running at a reasonable rate of speed, could not, by the exercise of ordinary care on his part, and the use of the means at his command, slacken the speed of his car or bring the car to a stop in time to prevent it from colliding with the automobile of the plaintiff, and the plaintiff or his automobile was thereby injured, then in either of said events, the law is for the defendant, and you should so find,” etc. It will thus be seen that the defendant was exonerated from liability under the excerpt -from the instruction, if plaintiff brought his automobile in front of the street car so suddenly and so close to it that the motorman in charge thereof could not, by the exercise of ordinary care on his part and the use of the means at hand, slackened the speed of the car, or bring it to a stop in time to prevent the collision, but to entitle it to the exoneration the sudden turning of the automobile in front of the car must have been done, under the instruction, while it was “running at a reasonable rate of speed.” There could be no exoneration under the instruction if plaintiff suddenly turned in front of the car and the collision could not possibly have been prevented regardless of its rate of speed. Illustrating our meaning, if the street car had been traveling at twenty-five miles
; This court in the case of Louisville Railway Co. v. Gaar, 112 S. W. 1130 (not elsewhere reported), had before it what we construe to be the precise question now under consideration. Plaintiff in that case, a child .four and one-half years old, according to the testimony of the street railway company, suddenly ran in front, of its car so close that it could not possibly be stopped if it had
The same idea was embodied in an instruction approved by this court in the case of Louisville Railway Co. v. Byers, 130 Ky. 437; and in the case of Hymarsh’s Adm’r v. Paducah Traction Co., where similar facts were involved. One of the grounds of liability of the street car company, as contained in the instructions of the court, was that the street car should be operated at a reasonable rate of speed, and upon failure thereof the defendant should be found guilty of negligence, provided however, that such failure (which in that particular was an excessive rate of speed) was the proximate cause of the injury; which but followed the universal law of negligence hereinbefore referred to. We have examined all of the cases from this court rendered since the opinion in the Gaar case and we find in none of them, containing similar conditions, any modification of the rule therein announced. We, therefore, conclude that the court should have given the above copied instruction offered by defendant in lieu of the copied one which it did give.