162 Ky. 1 | Ky. Ct. App. | 1914
Reversing.
Joe E. Marlow, an infant, sning by Ms next friend, brought this action against tbe Standard Oil Company and its manager, William Ubl, to recover damages for personal injuries. On tbe first trial of tbe case he recovered a verdict and judgment against tbe Standard Oil Company for $3,500, and against William Uhl for $500.00. On appeal to this court tbe judgment was reversed for errors in tbe instructions.' Standard Oil Co., &c. v. Marlow, 150 Ky., 647. On tbe return of the case another trial was bad which resulted in a verdict and judgment against tbe Standard Oil Company for $5,000, and against its co-defendant, William Ubl, for $1,000. Tbe Standard Oil Company appeals.
On tbe second trial several witnesses testified to certain admissions of Ubl made a day or two after tbe accident which tended to show negligence on bis part. As these admissions were not a part of tbe res gestae tbe trial court admonished tbe jury that they could not be considered in determining the liability of tbe Standard Oil Company. Counsel for tbe Standard Oil Company offered instructions as follows:
“A. In determining tbe question as to whether defendant Ubl told Cox and Marlow when they quit painting barrels to wash their bands and clothes in gasoline and burn tbe gasoline, if dirty, in tbe street, as referred to in instruction No. 1, you will not consider any evidence introduced by plaintiff tending to show that in conversations by Ubl with other parties during tbe night after tbe accident said Ubl either admitted or said be bad so told said Cox and Marlow, and unless you believe from tbe evidence independent of such alleged admission or conversation that Ubl did so tell or instruct Cox and Marlow, you will find for defendant, Standard Oil Company.
“B. If you shall find for plaintiff at all you may find against or in favor of either of tbe defendants, and if you shall find against both of tbe defendants you may say in your verdict bow much of your finding shall be paid by each of tbe defendants.”
It is insisted that tbe court erred in refusing to give one or tbe other of tbe offered instructions or an instruction similar in effect. In support of this proposition counsel relies on tbe case of C., N. O. & T. P. Ry.
“The effect of the instruction was, therefore, to deny the company all benefit from the exclusion of this evidence as to it, and place it in the same position it would have occupied if that ruling had not been made.”
On the first trial of the case the court gave to the jury six instructions which were offered by the plaintiff, and one instruction which was offered by the defendant. Instruction No. 1 authorized a finding against defendant, Standard Oil Company, if they believed that Uhl or Cox, a painter, employed by Uhl, was negligent: Instruction No. 2 authorized a finding against both defendants if they believed that Uhl was negligent. .Instruction No. 3 prescribed the measure of damages. Instruction No. 4 defined gross negligence. Instruction No. 5 defined ordinary care. Instruction No. 6 covered the question of contributory negligence. Instruction T), which was the 7th instruction, was as follows:
“If you shall find for plaintiff at all you may find' against or in favor of either of the defendants, and if you shall, find against both of the defendants you may say in your verdict how much of your finding shall be paid by each of the defendants.”
In the opinion on the first appeal the court did not set forth all the instructions given, but set forth instructions 1, 2 and 3. Instruction No. 1 was held erroneous because neither Uhl nor the company was responsible for the action of Cox, who was not their agent. Instruction No. 2 was modified in certain respects and directed to be
The trial court should not have permitted plaintiff to prove that Uhl, a short time before the accident to plaintiff, attempted to hire a hoy by the name of Hughes to assist Cox in painting the barrels. This evidence introduced an issue entirely foreign to the case. The effort to employ Hughes has no bearing on the employment of Marlow or defendant’s knowledge that he was engaged in assisting Cox. The fact that an effort was made to employ one boy does not tend to show that Uhl employed plaintiff or knew that he was engaged in assisting Cox.
In view of the foregoing, we deem it unnecessary to determine whether or not the verdict is excessive.
In view of the fact that instruction A offered by the defendant on the last trial more clearly presents defendant’s case with respect to the admissions of Uhl, the court will give that instruction instead of instruction B. It will also give the same instructions given on the second trial.
Judgment reversed and cause remanded for new trial consistent with this opinion.