Billroy's Comedians v. Sweeny

• Decision Date: 27 March 1931
• Citation: 238 Ky. 277
• Court: United States State Supreme Court — District of Kentucky
• Parties: Billroy's Comedians v. Sweeny.

238 Ky. 277

Billroy's Comedians v. Sweeny.

Court of Appeals of Kentucky.

Decided March 27, 1931.

1. Trial. — Credibility of witness is for jury.

2. Theaters and Shows. — Where patron of show was injured by collapse of seats, negligence of conductors of show in not properly bracing seats held for jury.

3. Damages. — Injured person must secure relief from personal injuries if he can do so by practical treatment without serious danger to himself.

4. Damages. — Where injured person fails to secure relief from injuries, damages may be minimized in proportion to amount injuries would have been reduced by practical treatment, less cost of treatment and compensation for pain occasioned thereby.

5. Damages. — Submission to practical treatment to reduce personal injuries is not condition precedent to recovery of damages.

6. Damages. — Failure of injured person to take risk of serious surgical operation for benefit of wrongdoer will not reduce verdict to mere nominal damages.

7. Damages. — Where patron suing for injuries alleged to have been sustained when seats in show collapsed was suffering from prolapsus of womb, cause and permanency of injuries held for jury.

Appeal from Pulaski Circuit Court.

W.B. MORROW for appellants.

W.N. FLIPPIN for appellee.

OPINION OF THE COURT BY JUDGE CLAY.

Affirming.

In this action by Irene Sweeny, an infant, suing by her husband and next friend, against William Wehle and William Roy, partners doing business as Billroy's comedians, to recover damages for personal injuries she was awarded a verdict and judgment for $3,000. The defendants appeal.

The facts are these: Appellants were conducting a show in the city of Somerset and gave a performance on the evening of May 7, 1929. Appellee, a colored woman, purchased a ticket, entered the tent and took a seat in the section set aside for colored people. The seat she occupied was three or four feet from the ground. Like circus seats the seats were built like stair steps. They were made of wood, braced on upright planks. The planks were braced by ropes at the top and by driven stakes at the bottom. None of the seats or planks were broken, but the seats suddenly swerved to one side, and the entire section collapsed. Appellee's ankle was sprained, and she received internal injuries which will hereafter be discussed. There was further evidence by a witness for the defendants that he was present on the occasion in question. Just before the seats fell he saw a large negro man leaning against the timbers that supported the seats and held them in position. The negro was pushing against the timber and he told him to desist. The negro continued to lean and push against the timber at the ena of the section until the seats collapsed. None of the timbers broke, and the seats fell in the direction that the negro was pushing. The fall of the seats was caused by the acts of the negro. On cross-examination he stated that the negro was a stranger to him, and was about six feet nine inches tall.

It is first insisted that the court erred in refusing to direct a verdict in favor...