180 Ky. 199 | Ky. Ct. App. | 1918
Opinion op the Court by
Affirming.
"William Boone, a colored man about fifty years of age, was engaged by tlie appellant, Stewart Dry Goods Company, as one of a crew employed by it in handling pianos
The injury came about in this way: The crew of four colored men engaged in handling pianos was under the direction of a foreman, one Spies, a white man; they were required to deliver a very heavy piano on Sneed street, and to do so conveyed the instrument to- the pavement in front of the house by means of a motor truck. The piano was then- lifted from the truck to the pavement and carried by the crew up the walk towards the house; appellee Boone was at the forward end of the piano moving backward up the steps to the porch, while the other three men were at-the rear of the piano lifting and pushing. There was a flight of five steps leading from the walk up to the porch floor; the porch floor was a little more than eight feet wide, and from the porch floor into the house was another step- about six inches high. When the crew with the piano reached the porch floor appellee, Boone, claims that he started to lower the piano on the porch, according to the custom, so that one of the men at the rear could come forward and assist him in carrying the front end, and that all of them might have a brief rest and take new holds and positions at the piano. Just as he was about to lower the piano Boone asserts that Spies, the foreman of the gang, said “keep her up boys,” and in attempting to obey the order he moved towards the door hearing almost half the entire weight of the piano, and in attempting to raise his foot over the step going .into the house he stumbled, partly from exhaustion and partly from the great weight which he was attempting to carry, and the piano fell upon his legs inflicting the injuries of which he now complains. Boone further asserts that it was a use and cus
Appellant company now insists that the injury was not the direct and proximate result of the plan or mode adopted, or the order given, if either was adopted or given by the foreman, but insists that there were intervening causes. However this may be, that question can not now be relied upon for the reason that it is res judicata. The opinion upon the first trial is the law of the case, binding both upon the trial court and this court. The judgment was reversed for a new trial and distinctly, recognized the right of plaintiff to recover upon his theory of the case should the facts sustain it. The opinion reads: “But it is further argued that plaintiff’s evidence fails to show that the foreman’s command to keep the piano up, even if negligent, was the proximate cause of plaintiff’s injury .... While it is true that plaintiff’s evidence as to the cause of the injury is not as clear as it might be, we conclude that he and his witnesses do testify to facts from which it can be reasonably inferred that, because of the foreman’s command, he was required to continue to carry a weight that was so heavy that he could not bear it, and at the same time raise his foot above the step at the door while proceeding backwards. Under these circumstances, we are of the opinion that it was for the jury to say whether or not the command, if given, was the proximate cause of plaintiff’s injury, and whether plaintiff was himself guilty of contributory negligence.” It is therefore too late to make the point even if it were meritorious, which we do not agree is true, that the injury complained of is not the direct and proximate result of the negligence of the defendant company, or its foreman.
Only two other questions are presented and relied upon by appellant: (1) the failure of the trial court to allow it to prove by a witness introduced by appellee that in moving pianos the man at the front end of the instrument in going up steps was allowed to control or direct
Counsel for appellant devotes most of their brief to a discussion of the alleged excessive verdict. Boone was injured in both legs; the knee cap on one leg was broken, and the large tenclon-which passes from the thigh over the knee cap to the bone below was entirely severed and the 'ends, like rubber, coiled up on each side of the injury causing a knot both below and above the knee. The separation of this important muscle rendered' Boone unable to control the action of his leg in going down grade or down steps. It caused what the physicians who testified on the trial called a “frail joint,” and would “buckle” when he attempted to go down steps or down hill.
The point is also made that the defect in appellee’s leg could and should have been remedied by a surgical operation and that appellee has neglected to undergo this operation and for that reason is not entitled to recover the sum awarded by the lower court, or any sum other than nominal damages. This position is not tenable. One who has suffered an injury is not required to undergo a serious and critical surgical operation which would necessarily be attended with risk of failure and of death in order to maintain an action to recover compensatory, damages for pain and suffering or the impairment of his power, actually suffered. The text in 13 Cyc., page 76, says:
“One who has been injured by the negligence of another must use ordinary diligence to effect a cure, and there can be no recovery for damages that might have been avoided by the exercise of such care. Only ordinary care is required; and where there has been no neglect on the part of the injured party, and his injuries were*204 more serious, or resulted more seriously than it was at first supposed they would, there can be a full recovery for the entire result.” In Pennsylvania it is held:
‘ ‘ One who has been hurt by the negligence of another is not bound in law to undergo a serious and critical surgical operation which would necessarily be attended with some risk of failure and of death, but must be permitted to exercise the liberty of choice in the matter, and his refusal to submit to the operation, although under the evidence it would probably lessen the effects of the injury, can not be considered in mitigation of damages recoverable therefor. Mattis v. Philadelphia Traction Co., 6 Pa. Dist. 94,19 Pa. Co. Ct. 106.
From a review of the authorities it may be stated that as a general rule one who is injured in his person .by the wrongful or negligent act of another is bound to exercise reasonable care and diligence to avoid loss or to minimize resulting damage, and to the extent his damages are the result of his active' and unreasonable enhancement thereof, or are due to his failure to exercise such care and diligence, he can not recover. (8 Ruling Case Law, page 447.)
Dr. Boss testifying concerning the extent of the injury and character of operation necessary to restore, in part, the limb said:
“"Well, he (Boone) came to the office after he had previously had Dr. Croft to wait on him. Dr. Croft had died and after Dr. Croft died he came to me. I used to be his family physician, and so I found him suffering with that leg, with the knee there where the tendon was cut loose from the knee cap bone, the patella. The great muscle there was cut loose, and I waited on him for a month or so, and told him there was nothing to do but to operate on him, nothing else would do any good. I plastered it up and he could not walk, and I told him he had to be operated on, for it to give him any relief. Q. You prescribed for him or worked on him with a view of avoiding an operation? A. Yes, sir, I waited on him for a month, or perhaps two months, strapped it up'. It was cut loose from the knee cap. Q. What effect did that have upon his walk or sustaining weight? A. He can not walk down hill; he can not hold the leg up; he can walk as long as he holds it straight but he can not walk unless he keeps it absolutely straight. He has no control over it. . . . Q. This operation you speak of, what
Dr. Boss further testified that he advised Boone to have an operation performed and that he declined to do so, giving as his reason that he did not have the money necessary to pay for such operation.
“Q. There is some difficulty in opening up a man’s leg, is there not? A. Yes, sir, it is a pretty big operation ; it is no little one. ’ ’
It appears that Boone was injured about five o’clock in the afternoon, and shortly thereafter was carried home by his fellow-workmen, and Doctor Croft was called, but did not arrive until about eight o’clock, at which time the injury was examined and treated by the doctor. The doctor came again the next day, and then Boofie at the instance of the doctor called for several days thereafter at the doctor’s office until Doctor Croft himself took sick and died. After that Dr. Boss was called to attend Boone. There is no complaint that either Dr. Croft or Dr. Boss was unskillful or negligent in the treatment of Boone, and such complaint would not avail in a case like this where the patient exercised ordinary care to obtain a skilled physician. Doctor Croft who first attended Boone did not offer to operate upon him, and Doctor Boss states that it was.a month on two months after he began to treat him that he first suggested that Boone should have an operation, and that Boone told him he could not have such operation because he did not
The rule seems to be that one who is injured through the negligence of another must exercise ordinary care to effect a-cure and to prevent aggravation of the injury, but he is(not required to do more than a reasonably prudent pe-rson would generally do under similar circumstances,And is never required to submit himself to a ¿serious, kurgical operation in order to repair the injury suffered if by so doing his life or h^al±h-is jeopardized, or if the operation would be painfully^agoniziag, or attended with doubtful results. The injury complained of in this case is not one that has been augmented by the neglect of appellee, but it is such as resulted directly from the negligence of appellant. True, Boone could have submitted to an operation which, barring accident, might have restored his limb to almost its original perfection, but such operation would have entailed much pain and suffering and would not, according to the, physicians, have restored the limb absolutely, not to mention the ever-present element of chance attendant upon efforts of this kind. The operation necessary to correct the defect would have been of major importance, and would have produced such pain' as would have necessitated an anaesthetic rendering Boone unconscious during its performance. The objection that Boone did not have the operation performed is directed at the excessiveness of the verdict, and if this contention could be considered at all then appellee, if he had submitted to such operation in order to correct the defect occasioned by the negligence of appellant, would be entitled to recover for the pain and suffering, expense and loss of time which he necessarily would have undergone in having- the operation, , Considered- in this light and in conjunction with the graphic description of the attending physician of the method which;would have to be employed in order to restore the limb, the verdict assessed against appellant
Verdicts ranging from fifteen hundred dollars to three thousand dollars for the partial loss of the use of an arm or leg, foot or hand, have been often sustained by this court as not excessive. A complete list of these cases would extend this opinion to unreasonable length. This court has frequently declined to reverse judgments for alleged excessivenoss under facts much more favorable to the appellant than those in this case. It can not be insisted that this verdict of two thousand dollars “appears to have been given under the influence of passion or prejudice” when the extent of the injury and the agonizing pain which Boone has endured is considered. Twice has the verdict gone against appellant, although the first one was not as large as the second. This may be explained, however, upon the theory that at the second trial the permanency and exact nature and extent of the injury was made more definite and certain. The first judgment was reversed for error in the instructions and not for excessiveness of the verdict, and this error was cured upon the second trial. Viewed from any standpoint the verdict does not appear to be excessive.
Judgment affirmed.