146 Ky. 612 | Ky. Ct. App. | 1912
Opinion of the Court by
Affirming.
The appellee, who was a passenger on one of appellant’s trains was severely injured in a wreck occasioned by the car in which he was riding leaving the track and rolling down an embankment. In this action to recover damages for the injuries sustained, the jury assessed his recovery at $2,500. The decided weight of the evidence tends to show that the derailment of the train was due to the unsafe and dangerous condition of the track and the roadbed at the place where the accident hap
It is said by counsel for appellant that the evidence to which we will presently call attention, aside from its inherent incompetency, was inadmissible because not •covered by the averments of the petition. The petition charged that- “the wreck of said train of cars was caused by the gross negligence and carelessness of defendants, its agents and servants, in so negligently and carelessly ■operating, maintaining and leaving therein cars so heavily loaded with coal, ties, etc., of such heavy weight that it spread the rails, and left the roadbed of said road. * * * He says that the said defendant also carelessly and negligently permitted its roadbed at the place where said wreck occurred and for a considerable distance on each side thereof, to get out of repair and to became dangerous and unfit for use, in this: That the ties across said road had at said place become rotten, and the rails worn and weakened, * * * and that but for such unsafe and dangerous condition of said road at said place, and for the negligent and careless manner in which said train was loaded, and being operated, said wreck and injury would not have occurred.” It will be observed that there are two charges of negligence in the petition, one: That the train was so negligently and carelessly operated as to spread the rails and leave the roadbed, and the other, that the ties and rails at the place of the accident were insufficient, defective and unsafe. Counsel for appellant insists that under this pleading, the only defects in the track that could be shown were such as related to the condition of the ties and rails, but we do not think the plaintiff was confined under the pleading to negligence of the company in this particular. Of course, if the only act of negligence charged in the petition was contained in the averment that “the ties across said road had at said place become
It is further complained that the trial judge permitted appellee and others to testify as to the condition of the track, rails and ties after the accident occurred, but we think this evidence was Competent, as the cars after leaving the track run some distance on the ties and left marks that could plainly be seen when the track was examined some days afterwards. And, as the exact location of the accident was plainly shown by the marks on the ties, it was permissible for appellee and other witnesses to describe generally the condition of the track at that place when they examined it, as there is no suggestion that any change had been made in the conditions existing when the wreck occurred except to repair the track and put it in better condition than it was.
Another contention is that it was error to permit a civil engineer to testify as to the general faulty construction of the track at this place, which is on a curve, but, it was proper to admit this evidence for the. purpose of showing that the persons in charge of the train did not exercise sufficient care in running it over this
Another ground for reversal relied on is that the trial court permitted several witnesses to testify as to the physical condition and appearance of appellee before and after he received the injuries complained of. We know of no reason why non-expert witnesses who qualify themselves to give evidence should not say what the physical condition and appearance of a party was before and after he received the injury for which he was seeking to recover damages. A non-expert witness is just-as well qualified as an expert would be to describe the physical condition and appearance of a person before and after he has been injured; and it was entirely proper to permit the jury to hear evidence of the size, weight and general physical condition of appellee before he was injured, and his size, weight and general physical condition afterwards. Of course, it was entirely unnecessary as well as incompetent to ask these witnesses what the appearance of appellee was at the time of the trial, as he was present and the jury could see for themselves what his appearance was. A few of these witnesses were permitted to say that appellee told them he was complaining and to say that from his appearance that he was in bad health, but this evidence although incompetent was not prejudicial, as it was really all developed in the competent testimony of the witnesses.
Another alleged error is the failure of the trial court to grant a change of venue, but this error is not pressed on our attention by counsel — doubtless for . the very good reason that the evidence does not show any cause why a change of venue should have been granted.
TJpon the whole case we feel satisfied that the appellant had a fair trial, and the judgment is affirmed.