116 Ky. 960 | Ky. Ct. App. | 1903
Opinion of ti-ie coubt by
— ^Attfibming.
Whilst the appellee, W. T. McCullough, was driving along a public highway leading from the city of Covington on the 29th of August, 1901, with two companions, he met the appellant, Clifford Shinkle, riding in an automobile. Appellee’s horse became frightened at the automobile, and upset his vehicle, throwing him upon the turnpike road, inflicting injuries to his clothing’and person^ and permanently impair-
Instruction No. 2 is as follows: Hf the jury believe from all the evidence that, at the time and place of injury to plaintiff, the defendant was operating said automobile at a high irate of speed, and that because of said rate of speed, or because of said rate of speed together with the noise emanating from said automobile, the horse of plaintiff became frightened, and caused the injury to plaintiff, and if the jury further believe that the act of defendant in operating said automobile at a high rate of speed, if he did so operate it, was an act of negligence on the part of the defendant, the jury should find a verdict for the plaintiff.” The complaint of this instruction is that it authorized the jury to find for the plaintiff if they believed that his horse became frightened •either at the speed of the automobile, or at the speed and noise emanating therefrom; it being nowhere alleged in the pleadings that the horse was frightened by any noise. This instruction only authorized a recovery in the event the jury found from the 'evidence that the automobile had been operated at a high rate of speed, although the horse may have been alarmed not only by the high rate of speed at which the machine approached, but also at the noise emanating •therefrom. Besides, appellant himself testified that the op
The instruction defining the measure of damage is not objectionable. In fact, it has been approved by this court in substantially the form in which it was given in this case in numerous cases.
Appellant also complains that the trial court erred in permitting appellee to prove a statement alleged to. have been made by him upon the trial in a justice’s court in an action on account for repairs to the buggy injured in this accident, to the effect that he considered himself responsible for the accident. To support this contention, we are referred to the note to section 44 of 1 Greenleaf on Evidence, in which the editor says that: “Opinion evidence of this character is only allowed when from the nature of the case the facts can not be stated or described to the jury in such manner as to enable them to form an accurate judgment thereof, and no better evidence than such opinion is attainable.” The author, in the section referred to, was discussing’ the competency of expert testimony. We think this testimony was competent as an admission of defendant, because it tended to contradict the testimony of the defendant given upon the trial of the case to the effect that he had not been guilty of any negligence which superinduced the accident complained of.
While automobiles are a lawful means of conveyance, and have equal rights upon the public roads with horses and carriages, their use should be accompanied with that degree of
Appellant also complains that the verdict is excessive. The testimony shows, that, in addition to the mere superficial bruises received by appellant, thei’e has been a permanent and serious loss in the vision of one of his eyes, as the ¡result of a severe cut and bruise immediately over it, received at the time of the accident. It is impossible for us .to determine the extent of pecuniary toss which may accrue ■to appellee from an injury of this character, not to speak of the pain and suffering and inconvenience resulting therefrom. This was a question for the jury, and there was abundant testimony on this point to* support their finding.
For reasons indicated, the judgment is affirmed.