171 Ky. 46 | Ky. Ct. App. | 1916
Opinion of the Court by
Reversing.
Appellant again relying upon the ground that the verdict is excessive also assigns as error the refusal of the court to give three instructions offered by it upon the second trial that were not offered upon the first. Upon the last trial in addition to the evidence heard upon the first trial appellant introduced the evidence of a Mr. Carter who was appellee’s foreman at the time of the accident, and who did not testify upon the first trial, who stated that just before appellee, pursuant to his directions, went upon the pole where the accident occurred, he warned appellee that the wire, from which the electric light current had been turned off, still carried the motor current and instructed him to use insulated pliers while at work on the line; that appellee did not follow these instructions. It is also in evidence for the first time upon the second trial that if appellee had used the insulated pliers the accident would not have occurred.
1. One of the instructions offered by appellant and refused by the court, while not correct in form, authorized the jury to find for appellant if they believed this testimony. While the opinion upon the former appeal is conclusive of every question presented therein or that should have been presented, except such as were left open by the opinion, it does not preclude the consideration of a question upon this appeal that was presented for the first time by the evidence upon the second trial. This evidence of Carter appeared for the first time on the second trial and presents a defense that was not presented upon the previous trial and appellant is not precluded by the former opinion from raising the question now if he was entitled to an instruction upon
2. Appellee not only contends that appellant is precluded by the former opinion from raising the question, but that the question is not properly presented by the record. In the bill of evidence three instructions are copied which are therein stated to have been offered by appellant and refused, and to have been the only instructions offered by it. These three instructions are identified in the bill of evidence by numerals, 1, 2 and 3. In the motion for a new trial one of the grounds assigned is that the court erred in refusing to give the instructions offered by appellant, but referred to in the ^grounds for a new trial by letter, instead of numerals, as in the bill of evidence. Appellee insists that this is not a sufficient identificatioxx of the ixxstructions to bring the question before us upon appeal, but wé do- not think the fact that the instructions offered and refused are referred to in the bill of evidence by numerals and in the motion and grounds for a new trial by letter is material since it clearly appears that oxxe of the grounds relied upon in the motion for a new trial was the refusal of the court to give the instructions offered by the appellant, and the instrxxctions that were offered and refused are identified by the bill of evidence. Neither the reference by numerals or letters was necessary. It is not ncessary in the motion and grounds for a new trial to describe particularly the errors relied upon, but it is sufficient if the particular errors relied upon are therein called to the attention of the court for consideration. L. & N. R. Co. v. McCoy, 81 Ky. 403; Meaux v. Meaux, 81 Ky. 479; Helfrich Saw & Planing Mill Co. v. Everly, 32 S. W. 750.
3. "While the rule is now thoroughly established in this state to give instructions presenting in specific and concrete form each party’s theory of the case — L. & N. R. Co. v. King’s Admr., 131 Ky. 347; Hackworth v. Ashby, 165 Ky. 799; I. C. R. Co. v. Dallas’ Admr., 150 Ky. 445; Peerless Coal Co. v. Coppenhaver, 165 Ky. 198 — it is not always ground for reversal to fail to include in the instruction upon contributory negligence the particular facts constituting the defense: Hobson on Instructions, secs. 436, 437 and notes thereto, nor is it ever proper to base an instruction upon particular facts
And although the instruction offered by appellant was not technically correct, it was the duty of the court to prepare and give a proper instruction upon the question. West. Ky. Coal Co. v. Davis, 138 Ky. 667; Western Union Tel. Co. v. Sisson, 155 Ky. 624; Lewis, Wilson & Hicks v. Durham, 144 Ky. 711.
3. The facts of this case are not similar to those in the case of Ky. Utilities Co. v. Searsay, 167 Ky. 840, there being no evidence here that it was impossible or
4. Appellant also contends that the court erred in refusing* to give the offered instruction defining the effect to be given the life tables introduced in evidence. It, however, is not the rule to give an instruction upon this question. Appellant was entitled to have had the court admonish the jury at the time this evidence was introduced as to the purpose for which it could be considered had it then made the request therefor, but it i did not do this. I. C. R. Co. v. Houchins, 121 Ky. 526; L. & N. R. Co. v. Irby, 141 Ky. 150.
In view of the fact that another trial is necessary by reason of the error indicated in the instructions, we do not deem it necessary to consider the question of whether or not the verdict was excessive
For the reasons indicated the judgment is reversed for proceedings consistent herewith.