148 Ky. 844 | Ky. Ct. App. | 1912
Opinion of the Court -by
Reversing.
In April, 1911, James Tucker, starting to walk across Main- street in Owensboro at the intersection of Elm street, collided with or was struck by a car of the appellant railway company. He brought his action below against the company to recover for his injury and obtained a judgment for $1,000. The railway company appeals.
There is no complaint that the case should not have gone to the jury. A reversal is asked because of tbe instructions given, and certain testimony admitted in plaintiff’s behalf. Tbe instructions were erroneous and demand tbe desired reversal.
Tbe fourth instruction attempted to define ordinary care and negligence in these words: “By ordinary care is meant such care as is usually exercised by ordinarily prudent persons, and by negligence is meant tbe absence of ordinary care.” As is well said by appellant, tbe standard of ordinary care varies witb varying circumstances — tbe greater 'the dánger, tbe greater tbe care, tbe less tbe danger, tbe less tbe care. What might be adequate care under ordinary conditions might be wholly inadequate care under extraordinary conditions. Tbe observation is well illustrated by tbe facts in tbe case at bar. There were two vehicles, a covered huckster’s wagon and a top buggy, standing along side each other between tbe car track and tbe sidewalk of tbe street where tbe car was approaching. The evidencé tends to show that Tucker’s view of tbe approaching car was obscured by them. Obviously if this be true tbe surroundings at that point of crossing were those of more than ordinary danger. If tbe vehicles obscured tbe vision of
Upon the trial the court gave an instruction in the following words:
“The court instructs the jury that if they believe from the evidence that the car which struck plaintiff was running at a reasonable rate of speed at the crossing of Main and Elm streets, and notice of its approach thereto was given by ringing the gong, and plaintiff attempted to cross the track, knowing of the approach of the car so close to the approaching car that the motorman in the exercise of ordinary care, and with the means at his command for stopping said car was not able to stop it before injuring plaintiff, then the law is for the defendant, and the jury should so find.”
This instruction was offered by defendant without the words “knowing of the approach of the car” in it. These words were added by the court and the instruction as modified by them was given in the language quoted, over the defendant’s objection. The instruction in this form was highly prejudicial to the railway company. If the defendant had as a matter of fact discharged its duties of signaling the car’s approach and of operating the car at a reasonable rate of speed (there being no claim of any actual discovery of Tucker’s peril) it had done all that was required of it; and if the plaintiff was injured in attempting to cross the track over which defendant’s car was being properly operated, his right to recover, or rather the railway company’s obligation to
Complaint is also made by appellant of tbe admission of tbe testimony of Dr. E. E. Pennington. Tbe record, however, fails to disclose any objection upon the trial to tbe admission of this testimony, or any exception to tbe fact that it was admitted. We are, therefore, not permitted to review upon this bearing tbe competence of that testimony. There was, however, submitted to this physician a hypothetical question, framed upon a.n inquiry as to whether or not tbe condition in which this physician bad found Tucker could have resulted from tbe injuries which tbe evidence disclosed be bad suffered. To this, question proper objection was entered, and to tbe admission of tbe answer proper exception was saved. The admission of this testimony was not error. As to whether or not this testimony would have been competent bad proper objection been entered to tbe preceding
Complaint is likewise made of the testimony of Samuel Tucker, a son of James Tucker, who, over the objection of the railway company, was permitted to state the appetite of the injured man at a later time was bad, and that he did not sleep well. The admission of this testimony was proper. The loss of appetite and inability to sleep.were not set up in the petition as a specific injury for which the plaintiff sought recompense; but plaintiff testified that as' a result of the accident he could not sleep well,- and that he had no appetite, conditions which were admissible in evidence under the pleadings as made, because they reasonably and properly might be expected to follow the shock of the collision and thé in-injuries described. The son’s testimony, corroborative of that of the plaintiff’s father, was competent.
The judgment of the trial court is reversed.