178 S.W.2d 4 | Ky. Ct. App. | 1944
Reversing.
In an action to recover damages for personal injuries suffered when he was struck by a taxicab owned by the Louisville Taxicab Transfer Company, the plaintiff, Patrick J. Byrnes, was awarded $3,000 by the jury, and, from the judgment rendered on the verdict, the defendant has appealed. The chief complaints are of the instructions.
The appellee was struck by one of appellant's taxicabs when he was crossing from the east to the west side of Eighteenth street or Dixie Highway in Louisville, Kentucky. The accident happened about 7:30 p. m., September 11, 1942. The appellee testified that he was crossing Dixie Highway at its intersection with St. Louis avenue when he was struck, but all other witnesses, including his own, placed him near the center of Dixie Highway about 100 feet south of the intersection. Most of them stated that he stepped off the curb on the east side of Dixie Highway in front of the third house from the intersection, and was walking diagonally across the street toward the southwest corner of St. Louis avenue and Dixie Highway where his wife was standing when he was struck. Appellee fixed the speed of the taxicab at 45 miles an hour, although he admitted it was almost against him when he first saw it. No other witness fixed the rate of speed at more than 25 miles an hour, and the driver of the taxi stated to a policeman immediately after the accident that he was traveling at a speed of about 25 miles an hour when he first saw appellee crossing the street about 20 feet in front of his cab. He immediately applied the brakes and turned his cab to the left in an effort to avoid striking appellee, but the right front fender and bumper struck him. The cab stopped within two or three feet after striking appellee, with the front wheels across the center line of the street.
The court instructed the jury that it was the duty of the driver of the taxicab to drive at a speed no greater than 25 miles an hour unless they believed from the *562
evidence that a speed greater than 25 miles an hour was not unreasonable or improper driving considering the traffic conditions and use of the highway at the time and place of the accident. Appellant insists that the instruction is erroneous since there was no competent evidence of probative value that the taxicab was traveling at a speed greater than 25 miles an hour. Appellee testified without objection that the taxicab was traveling at a speed of about 45 miles an hour. It is true that his opportunity for observing and estimating the rate of speed was slight, but he was entitled to have his testimony considered by the jury for whatever it was worth. White v. Saunders,
KRS
The appellant also complains because the court, in its instruction on the measure of damages, authorized the jury to award damages for any permanent impairment of appellee's power to earn money, it being argued that the evidence failed to show his injuries are permanent. The appellee suffered a simple fracture of the pelvic bone without any displacement, and a few days after the accident it was discovered that he had a hernia. There was proof that the hernia was caused by the accident. There was no proof that the injury to the pelvic bone would result in any permanent impairment of appellee's power to earn money. All of the medical testimony was to the contrary. There was some conflict in the evidence as to the extent of the hernia, but Dr. Thomas J. Lynch, appellee's physician, testified that it was fully developed and that it will incapacitate the appellant until it is reduced or corrected by an operation. In other words, the appellee's power to earn money has been permanently impaired by reason of the hernia unless an operation is performed to reduce the hernia and the operation is successful. One injured through the negligence of another must use ordinary diligence to effect a cure and thus to minimize the damages, but he is not required to submit to an operation or suffer his damages to be reduced where an operation would be serious and critical and likely to be attended with some risk and possible failure. He is bound to submit to an operation only when a reasonably prudent man, under the circumstances, would do so. Billroy's Comedians v. Sweeny,
It is claimed that the verdict is excessive, but, since the proof may be different on another trial, we refrain from passing on that question.
The judgment is reversed, with directions to grant appellant a new trial.