178 Ky. 220 | Ky. Ct. App. | 1917
Opinion of the Court by
Affirming.
Plaintiff, Clarence Key, brought this suit against the. West Kentucky Coal Company and J. W. Ellswick, its electrician, to recover damages for personal /injuries. The jury found in favor of Ehswiek, but returned a verdict against the coal company for $10,000.00.- The coal company appeals. ......
According to the evidence for the defendant, the trolly-wire and hangers were standard appliances and such as. were ordinarily used. There was no visible defect in th& wire at the place where it broke and nothing to indicate-that it would break. On the contrary, it broke from some hidden defect which could not have been discovered.
The first error assigned for a reversal is the refusal, of the trial court to grant defendant’s petition for’a removal to the Federal Court for the Western District of Kentucky. The original suit was filed on June 16, 1915,
2. It is next insisted that appellant’s motion for a. peremptory instruction should have been sustained. While it is true that the doctrine-o'f res ipsa loquitur applies in a case of master and servant in a more restricted sense than in a case of carrier and passenger, and the mere breaking of a piece of machinery is not therefore-sufficient evidence of negligence to make out a prima facie case against the master, yet where the accident results-' from defective conditions which can be explained upon no reasonable hypothesis other than negligence, very, slight circumstances independent of the accident itself, which tend to show negligence on the part of the master, will be sufficient to take the case to the jury. Louisville & Nashville R. R. Co. v. Allen’s Admr., 174 Ky. 736, 192
• 3. ■ We find no prejudicial error in the omission and rejection of evidence. ■-
4. By instruction No. 1, the court told the jury in, substance that it was the duty of the company, if- its wires carried a deadly or dangerous current of electricity, to use the utmost care and skill in-the construction, - management, and maintenance thereof, and that it was its .further-duty to exercise -and use the utmost-care'and, skill to properly support said--wires and to keep same in-repair and that if they-believed; from the evidence that-the company failed to observe and perform said duties, or any of, them, and by reason1 of such failure the trolly-wire and its'hangers were not reasonably safe and-that such unsafe condition,' if. any, was' not known to plaintiff, or was not so obvious that he should have known thereof-, by ordinary care in the discharge of his duties, and that by reason of such unsafe condition, if any, plaintiff
By instruction No. 2, the jury were told that the coal company had the right to leave exposed and uninsulated such points of its wires as were reasonably necessary to conduct its business, and that if they believed from the evidence that the part of said wire exposed and the current carried therein were reasonably necessary for the conduct of their business, and if they further believed from the evidence that the company used the care defined in the instructions, they should find for the defendant.
' By instruction No. 3, the jury were told that if they believed from the evidence that the trolly wire was caused to strike plaintiff because of latent defects and the defendant could not have known thereof by the utmost care, they should find for the defendant.
By instruction No. 4, the court defined utmost care ¿nd skill as “the highest degree of care and skill known, which may be used in the same or similar circumstances.”
The first complaint of instruction No. 1, is that it. imposed on the company the duty to exercise the utmost care and skill, not only in the management and, maintenance of its wires, but in their construction.Clearly this complaint is without merits, for the proper construction of such wires is as necessary to their safety, as their maintenance after their construction.
Another complaint of instruction No. 1, is that it failed to require the jury to believe that the unsafe condition of the wire and hanger was known to the company, or could have been known to it by the exercise-of the xitmost care. In reply to this contention, it is sufficient to say that in submitting the issue of negligence-in failing to furnish reasonably safe appliances, the' court may employ either the language of the given instruction, or that which the company claims should have been used. East Tennessee Tel. Company v. Jeffrey, 153 Ky. 133, 157 S. W. 3; Lexington Utilities Co. v. Parker’s Admx., 166 Ky. 81, 178 S. W. 1173; Ross-Paris Co. v. Brown, 121 Ky. 821, 90 S. W. 568. Not only is. this true but the omission of the issue of actual or constructive knowledge from the given instruction, even if technically incorrect, was cured by instruction No. 3, which told the jury to find for the defendant if they;
The definition of utmost care and skill is also criticised, but the identical definition has been approved in a number of cases. Bowling Green Gas Light Co. v. Dean’s Exor., 142 Ky. 678, 134 S. W. 1115; Lexington Utilities Co. v. Parker’s Admx., supra; Smith’s Admx. v. Middlesboro & Co., 164 Ky. 44, 174 S. W. 773; Mangen’s Admr. v. Louisville Electric Light Co., 122 Ky. 476, 91 S. W. 703; McLaughlin v. Louisville Electric Light Co., 100 Ky. 173, 37 S. W. 851; Paducah Ry. Co. v. Bell, 27 Ky. L. R. 428, 85 S. W. 216; Overall v. Louisville Electric Light Co., 20 Ky. L. R. 759, 47 S. W. 442. In discussing this cuestión in Bowling Green Gas Light Co. v. Dean’s Admr., supra, the court said: “Nor is this degree of care an unreasonable requirement. When a company is using in the conduct of its business an agency so subtle and deadly, as electricity, in places where persons have the right do go and be, the highest' ¿eg-rpa pf sHU and c^e attainable should be exercised to protect them from danger.”
5. Lastly it is insisted that counsel for appellee was guilty of misconduct in his argument to the jury. It appears that counsel after referring to the fact that a witness stated that the old wire broke and in a few minutes it was taken to the company’s office then turned to the company’s superintendent, who was present and said to him, “Why didn’t you bring that old wire up here and let the jury look at it?”.. The, chief complaint of this argument is that there was-no evi1' dence to the effect that the broken wire was taken to the company’s office. While there may have been no evidence to support this statement, it is nevertheless true that the broken wire, whether taken to the com:' panv’s office or not, was on its premises and under its Control. Tn view of the company’s claim that the wire broke from a hidden defect, it was within the limits of legitimate argument to comment on the company’s failure to produce the wire at the trial, as being a circumstance tending to rebut such claim.
Judgment affirmed.