98 Ky. 684 | Ky. Ct. App. | 1896
delivered the opinion oe the court.
The appellee Sneddon was an employe in the McHenry Coal Mine Co., and while engaged in hauling coal in the mines was injured by the team he was driving colliding with a team driven by another employe.
We will not allude to the testimony further than to say the case went properly to the jury upon the question as to gross negligence on the part of the superintendent of the mines, and that of contributory neglect on the part of the appel-lee. The trial of such issues belong to the jury, and as the case must go back we refrain from discussing the facts applicable to either issue.
We are satisfied, however, that it is not a case for punitive damages, and while it is difficult to establish any certain rule by which trial courts are to be controlled in this class of eases, the instructions must be governed by the facts of each case.- It is nevertheless well settled that it is not every case of gross negligence where punishment, in the way of damages, may be inflicted.
Where the facts conduce to show reckless, wilful or malicious conduct on the part of the party charged with the wrong, exemplary damages may be awarded. There is no evidence of the presence of malice or reckless conduct on the part of the superintendent as indicated a purpose to have the appellee injured, or a reckless disregard of the safety of his person, and, therefore, the instruction as to punitive damages should have been refused. The instruction should have confined the jury, if they returned a verdict for the plaintiff, to compensatory damages only.
This judgment must be reversed for another ■ reason. During the progress of the trial it appeared that the parties were, or had been, making an effort to compromise the matter in controversy, and a concession evidently made by
When counsel for the plaintiff made his closing argument to the jury he stated that he held in his hand a letter from W. G. Duncan, president of the coal company, addressed to the father of the plaintiff, acknowledging the liability of the defendant for damages, and saying the defendant would settle but for the fact that defendant had an insurance policy covering such cases, and the insurance company would not settle, and the attorney then appealed to the attorney for the defendant, asking his permission to read the letter to the jury.
The defendant’s counsel objected at the time to such a line of argument, and the court told the jury to disregard it. The attorney for the plaintiff then withdrew the statement, and told the jury as the court had sustained the objection they must give no weight to what he had said in regard to the letter.
In the argument of issues of fact before a jury much latitude is given counsel, and however erroneous his conclusions may be as to the effect of the facts in evidence, the court will not interfere; but when he undertakes to discuss or debate facts not in evidence, the court should check him, and while such an indiscretion on the oart of counsel will not always be sufficient grounds for reversal, yet in a case like this where there is a conflict in the testimony, or even if there had been no conflict, where counsel says to the jury that he has the evidence of guilt, or of the unlawful act, in his possession, and offers to read it to the jury by the consent
Nothing the trial judge could say could remove from the jurors’ minds the impression made by the proposal by counsel for the plaintiff to the defendant’s counsel to read the letter of the latter’s client as conclusive of the issue that was then being tried.
For the reasons indicated the judgment is reversed and remanded for proceedings consistent with this opinion.
