168 Ky. 453 | Ky. Ct. App. | 1916
Opinion op the Couet by
— Affirming.
Tliis is the second appeal of this case by the railway company. The former opinion may be found in 158 Ky., 88, and as the facts are very fully stated in that opinion, it is not necessary to repeat them here, especially as the evidence on the trial from which this appeal is prosecuted was substantially the same as the evidence on the trial from which the former appeal was taken.
The grounds relied on for reversal of the judgment, which was for $12,600.00, are: That the verdict of the jury is not supported by sufficient evidence; that the court erred in the instructions, and in the admission of incompetent evidence; that the verdict is excessive, and that one of the jurors was guilty of miscondct.
On the former appeal we held that the evidence for the plaintiff was sufficient to take the case to the jury and to sustain a verdict in his behalf, and in view of the fact that the evidence on this trial is if anything more favorable to the plaintiff than the evidence on the former trial, the question that the verdict of the jury was not supported by sufficient evidence must be regarded as settled adversely to the contention of the railway company by the former opinion.
On the first appeal the instructions on the measure of damages and contributory negligence, given on the first trial, were held to be erroneous, and the court pointed out the proper instructions that should be given in place of the ones that were given. Some minor errors were also pointed out in other instructions, and it is now insisted by counsel for the appellant that the trial court in the instructions on the second trial did not follow the directions laid down in the former opinion; but we do not think this objection is well founded except in one particular that will later be noticed.
Counsel for the railway company did not request any instruction except one asking a directed verdict in its favor, and this the court properly refused, but exceptions were saved to the instructions given.
The petition, in itemizing the damages to which plaintiff was entitled, sought a recovery of nine hundred dollars for lost time, .and in instruction number three the court told the jury that if they found for the plaintiff they should find for him such sum in damages as would reasonably compensate him “for the reasonable value of any time necessarily lost, on account of said injury, not exceeding nine hundred dollars; for physical pain and mental suffering, if any of either, on account of said injury, and for permanent injury to him, if any, on account of said injuries, diminishing his power to earn money, but in all not to exceed the amount claimed in the petition, to-wit: fifty thousand dollars.”
In Blue Grass Traction Co. v. Ingles, 140 Ky., 488, the court said: “But when there is a claim for special damages based on time lost, and also a claim for partial
It was further said in that case that if requested the court' should add that the allowance, if any, for impairment of power to earn money should begin when the allowance, if any, for time lost ended, but we have never held it to be -reversible error to fail to qualify the instruction in this way where a recovery was sought for lost time as well as permanent impairment, unless such a qualification was requested and refused. We have only said that the court, if requested so to do, should direct the jury that the allowance for the impairment of the power to earn money, if any, should begin when the allowance, if any, made for lost time, ended. Illinois Central R. R. Co. v. Mayes, 142 Ky., 382.
But in this case, although counsel for defendant did not request the court to instruct the jury that the damages allowed for impairment should not begin until the time lost for which damages were allowed ended, the attorneys for the plaintiff, in order to remove any question that might be made that the jury may have allowed nine hundred dollars for lost time and also damages for impairment of power to earn money dating from the time of the injury, thereby giving double damages for a part of the time, moved the court to remit nine hundred dollars of the verdict, and this was done. In view of what has been said, it would not have been reversible error if this remitter had not been made, and of course the appellant has no ground of complaint that can be rested on this remittance.
We might further add that it is good practice to remit in the trial court so much of the recovery in any case as may be fairly attributed to erroneous instructions.
The instruction on the subject of contributory negligence is complained of, but this instruction, although not phrased like the one approved by this court in C., N. O. & T. P. Ry. v. Goode, 163 Ky., 60, has been approved by' the Supreme Court of the United States in Norfolk & Western Ry. Co. v. Earnest, 229 U. S., 114, 57 L. Ed., 1096.
We do not find that any incompetent evidence was admitted; nor do we think the alleged misconduct of the juror was sufficient to authorize the granting of a new trial. All that appears is that one of the jurors had said, in a general conversation some weeks before he was selected as a juror, that he believed a person who was hurt while working for a corporation ought to be paid, and if he had anything to do with it he would get paid for his injury. But it does not appear that any of the parties engaged in the conversation had in mind this case, or that it was anticipated at the time that the person who made this statement would ever be called as a juror in the case. Casual remarks made by men as to what they thought ought to be done or ought not to be done in certain classes of cases is not such misconduct as will authorize the granting of a new trial, when it' does not appear that what they said had any reference to the case in which they sat as jurors.
Upon the whole case, it appears that, with the exception of an error in the instruction as to lost time, the lower court tried the case according to the rules laid down in the first opinion.
Wherefore the judgment is affirmed.