134 Ky. 678 | Ky. Ct. App. | 1909
Opinion of the court by
— Affirming.
Irene Netter, a child about 12 years of age, was run over and killed by a street car operated by the appellee company. This action was brought by her
In reference to the first error assigned, section 341 of the Civil Code of Practice provides that:
“A new trial shall not be granted on account of the smallness of damages in an action for an injury to the person or reputation, or in any other action in ■which damages equal the actual pecuniary injury sustained; nor shall more than two new trials be granted to a party upon the ground that the verdict ■is not sustained by the evidence.”
Counsel for appellant insist that this section is''not applicable to actions to recover damages for injuries resulting in death, urging that it should be limited to actions for personal injuries in cases where death does not result from the injuries sustained. It will be observed that the section is not confined to actions '■for injuries to person or reputation, but embraces all ‘ ‘ other actions in which the damages equal the actual pecuniary injury sustained.”
So that, giving do the language used its fair meaning, the section must be held to include not only actions .for injury to the person or reputation, but any other action in which it is sought to recover damages, whether the action be founded in negligence or tort, or grow out of the breach of a contract. It follows, therefore, that the section is fully as applicable to ■ an action bro'ught by the personal representative of
As no' special damages were claimed, and there was no evidence introduced to show what loss, if any, the estate of the decedent sustained by her death, the recovery being- sought solely for the destruction of the life of the decedent, we are unable to say with any reasonable or approximate degree of certainty what the pecuniary injury to her estate was. It is true that under our- system of practice juries are called upon in every case where a recovery in damages is sought for the destruction of life by negligence or wrongful act to fix the loss the estate of the decedent has suffered by reason of his death; and often they must do this when there is no evidence upon which they can rest their conclusion as to the amount that should be awarded. But this-means or method of arriving at and fixing the amount of -recovery, al
In Jesse v. Shuck, 12 S. W. 304, 11 Ky. Law Rep. 463, it was held that in an action for personal injuries where special damages were sought to be recovered as'for loss of time, cost of medical attention, and expense in effecting a cure, and there was evidence showing approximately the amount and value of the
To the same effect is Baries v. Louisville Electric Light Co., 118 Ky. 830, 80 S. W. 814, 85 S. W. 1186, 27 Ky. Law Rep. 653. Adopting and following the reason of these cases, we are of the opinion that, in an action to recover damages for loss of life, a new trial might be granted if there was evidence showing even approximately the pecuniary loss the estate of the deceased sustained, and it appeared that the amount assessed was wholly insufficient as compensation. And the same rule would apply in an action for an injury to the person if there was evidence showing the amount of the pecuniary loss the injured person had sustained byreason of his injuries in being-deprived of the ability to follow his vocation in life, or otherwise unfitted for the performance of such services as he might have rendered except for his injuries, and this, independent of the amount sought to be recovered as special damages as for lost time or expenses in effecting a cure. But, where a recovery is sought solely for mental or physical pain or suffering, or where the action is to recover damages for the death of a person, and there is no evidence upon which to base an opinion as to the pecuniary loss suffered by his estate, the verdict of the jury will not be disturbed upon the sole ground that it is inadequate. It follows from this that in the case before us we are not at liberty to disturb the finding of the jury upon the ground that the assessment of damages was inadequate, because there was no evidence whatever tending to show the loss the estate- of the deceased
In considering the second error assigned, it will be necessary to state briefly the facts. The deceased was run over and received the injury from which she died while attempting to cross Preston street at its intersection with Camp street. Several witnesses on behalf of the plaintiff below testified that the car that struck the deceased was at the time running at a high and unreasonable rate of speed; while other witnesses on behalf of the company said that the car was running slowly, or not at an unusual or unreasonable rate.
With this evidence before the jury upon this vital issue in the-case, the court gave instruction No, 4, reading as follows: ' ■
i£If you shall believe from the evidence that Irene Netter suddenly ran in front of the car, and so close to the car that the motorman in charge- of the car could not by the exercise of ordinary care have stopped the car and prevented the injury to Irene Netter, then the law is for the defendant, and you should so find, unless you should further believe from the evidence'that after Irene Netter came in peril from the car the motorman could- by the exercise of- ordinary care have discovered her peril, and by the exercise of ordinary' care could have stopped- the car or so controlled it as to prevent; injury to her. In the last .event, the law would be for the plaintiff.”
■ The error in this instruction consists-in the failure to incorporate in it the idea that the ear at the time . deceased was struck was- running at a reasonable rate of speed. If the car was running at such .a rate of speed that the motorman could not by -thé- exercise
The omission in the instruction could only have weighed with the jury in considering whether or not the defendant was guilty of negligence, and, as this point was decided in favor of the plaintiff, it is clear that the instruction was not prejudicial, and that the
Complaint is also made that the court erred in refusing to sustain a challenge for cause presented a.gainst George Deucer, who was summoned as a juror. Section 2247 of the Kentucky Statutes provides in part that: “If a juror drawn from the drum or wheel case has served in any circuit court on the regular panel within twelve months, such service shall be ground for challenge for cause; if a juror is summoned as a bystander, after having within twelve months served on any jury in any circuit court as a bystander, such service shall be ground for challenge for cause; and if the name of a juror does not appear on the last returned assessor’s book for the county, it shall be ground for challenge for cause.”
The record is not clear upon the question that Deucer was asked if he had served as a juror within the last year in any of the divisions of the Jefferson Circuit Court, or that he answered “No.” This trial was had in March, 1907, and the transcript of the official stenographer shows that, when Deucer was challenged for this cause, “it appeared that said juror had not served as a juror in any division of the [Jefferson Circuit Court since October last.” The bill of exceptions recites that Deucer was asked if he had “served as a juror within the last year in any of the divisions of the Jefferson Circuit Court,” to which he answered “No.” While the affidavit of the
Section 2253 of the Kentucky Statutes (Russell’s St. Sec. 3076), after describing the qualifications of a juror, mentions a number of persons who are incompetent to sit on a jury, and then provides: “But the fact that a person not competent served on a jury shall not be cause for setting the verdict aside, nor shall exceptions be taken to any juror for such cause after the jury has been sworn. -This section is part of an act of 1893 (Acts 1891-92, 93, p. 958, c. 210, Sec. 13), as amended by an act of 1894 (Acts 1894, p. 219, c. 98), while section 2247, supra, is an act of 1906 (Acts 1906, p. 519, c. 156); but in our opinion so much of the act of 1906 as relates to the qualifications of jurors should be read in connection with and as a part of section 2253.
If, however, in civil cases the fact that a juror is related to one of the parties, or is shown to have expressed an opinion as to the merits of the case, or for other substantial cause is not fit by reason of prejudice or partiality for or against one of the parties to render a fair decision, and the fact of his incompetency for this reason is not discovered until after the trial, it will be cause for setting aside the verdict if it appears that due diligence was exercised to discover the facts disclosing his incompetency before he was selected as a juror. Vance v. Haslett, 4 Bibb, 191; Taylor v. Combs, 50 S. W. 64, 20 Ky. Law Rep. 1828.
For the reasons stated, we are unable to grant the request of appellant that the judgment- be reversed; and, therefore, the whole court sitting, it is ordered to be and is affirmed..