84 Ky. 267 | Ky. Ct. App. | 1886
delivered the opinion op the court.
The right of a person to recover damages for a personal injury is not affected by his having contributed to it, unless he was in fault in so doing. He may indeed not only contribute to it, but be the immediate cause of it, and yet recover. Thus, if a passenger, under a reasonable apprehension that, a ■collision or other accident is imminent, changes his position to one in fact more dangerous, or even leaps from the vehicle while in motion, yet he may recover •damages if he be injured; and this is true even though it may afterward appear that if he had sat still he would not have been injured. One is not bound, under such circumstances, to exercise all the prudence and care that ordinarily characterizes the conduct of a prudent man.
Thompson on Negligence, vol. 2, page 1092, says: “If A, through his negligence or fault, put B in a position of immediate danger, real or apparent, and
It is urged that when one is frightened by something resulting from the neglect of the carrier, he can not be charged with contributory neglect to any extent. He, however, must act upon a reasonable apprehension of peril. His conduct must conform to that of an orcli- « 'narily careful man under like circumstances. He has no right, upon the happening of some trivial occurrence, or such as would not create fear or apprehension of injury in the mind of an ordinarily prudent and careful person, to bring injury upon himself, and then recover damages by reason of it. (2 Rorer on Railroads, pp. 1092-3.)
This rule is sustained by both reason and precedent. The Supreme Court of the United States, in the case of Stokes v. Saltonstall, 13 Peters, 191, said:
Mr. Pierce states the rule thus : “If, through the de-. fault of the company or of its servants, the passenger is placed in such a perilous condition as to render it an act of reasonable precaution for the purpose of self-preservation to leap from the cars, the company is responsible for the injury he receives thereby, although if he had remained in the cars he would not have been injured.” (Pierce on American Railroad Law, 1st ed., page 475.)
The same doctrine is announced in his later edition (p. 329), although clothed in different language; and also in the cases of Railroad v. Paulk, 24 Geo., 356; Railroad v. Morris, 31 Grattan, 200; Frink, &c., v. Potter, 17 Ill., 406.
The character of the impending danger, or at least its apparent character, is to be considered.
If one acts unreasonably rashly, or becomes frightened at a trivial occurrence, not calculated to alarm a reasonably prudent man, and thereby brings injury upon himself, there is no liability.
We think this was done in this instance, when the third instruction given at the instance of the appellee and the fourth one of the appellant are considered together. The law of the case would have been more succinctly stated, and less calculated to mislead the .jury, if the two instructions had been blended in one; thus, if that given for the appellee had embraced the idea that the circumstances must have been such, or apparently such, as to induce a reasonably prudent man to do as the appellee did do, it would have correctly and fully presented the law of the case upon this point.
The first instruction given at the instance of the appellee does not assume, as the counsel for the appellant supposes, negligence upon the part of its agent. It would have done so if the word “negligently,” of the use of which he complains, had not been inserted.
The only remaining question is whether the finding is so excessive as to require a reversal. Its consideration requires a brief statement of the facts of the case.
The appellee was a passenger upon a street car of the appellant, passing over the suspension bridge from Cincinnati to Covington. The driver upon appellant’s cars acts both as such and as conductor. It appears that he can reasonably do so, as he collects
A long line of decisions have established the rule that the verdict of a jury should not be interfered with upon the ground that it is excessive, unless flagrantly so; and this court has the highest regard for the province of the jury; but is not this verdict open to this. objection?
We doubt if a case can be found where a verdict for so large a sum has been sustained upon such circumstances as appear in this case, and where the injury was so slight.
It is noticeable that the petition does not aver any special damage. It only proceeds for the injury. Theappellee could not, therefore, recover any money expended by him or debt created on account of it. (Newman’s Pleading and Practice, p. 413.)
It is true that upon the trial he was allowed to prove, without objection, that while he was laid up a flood came in the Ohio river, by which he was damaged 83,000, and that he lost business by being confined on account of the injury. These losses were not, however, sued for; and while we can not reverse the judgment by reason of this testimony, as no objection was made to it, nor by reason of the probable fact that the verdict was based largely upon it, yet we may consider it in arriving at a correct conclusion of the question we are now considering.
The counsel for the appellee say: “The appellant, without objection or exception, or effort to rebut, ac-
The “financial-damage ” and medical bill were not in question, however; the appellee neither asserted them or attempted it; it was probata without allegata? he only proceeded for the injury. We must, therefore,, assume that the entire sum found was for the injury and the verdict of course does not show otherwise.
It seems to us that it must strike every unprejudiced mind that the one is greatly disproportioned to the other. There were no circumstances of aggravation connected with the injury; it was not the result of willful or intentional neglect, or such as flows from bad faith of a quasi criminal character.
The lasting effect of the injury is at most but slight, not interfering with the power of the appellee to earn a living or transact any business ; and upon a careful consideration of all the testimony and circumstances of the case, the verdict can but be regarded as so flagrantly excessive as to demand the interposition of an appellate tribunal.
Judgment reversed, and cause remanded, with directions to permit the appellee to plead any proper special-damage, if he desires to do so, and for further proceedings in accordance with this opinion.