C., N.O. & T.P.R. Co. v. Ross
| Decision Date | 29 January 1926 |
| Parties | Cincinnati, New Orleans & Texas Pacific Railway Company v. Ross. |
| Court | United States State Supreme Court — District of Kentucky |
1. Damages — $10,000.00 for Claimed Traumatic Neurasthenia Excessive, in View of Unsatisfactory Evidence of Permanency. — Verdict of $10,000.00 for personal injury, of which there was no visible mark, but from which traumatic neurasthenia was claimed to have resulted, held excessive, in view of lack of positive and satisfactory evidence of permanency of injury.
2. Damages — Question of Permanency of Personal Injury to be Submitted by Approved Instructions. — Where there is question of permanency of personal injury, it should be submitted by instructions similar to those approved by this court, giving the jury opportunity to determine such question.
3. Evidence — Hypothetical Question Not to Include Facts of which no Proof. — Hypothetical question, which includes facts of which there had been no proof, is objectionable.
4. Appeal and Error — Citation in Brief of Other than Kentucky Reports Helpful to Court. — Citation in brief of every publication in which a Kentucky case is reported, permissible under Court of Appeals rule 5, subsection 3, as changed, frequently will be helpful to the court.
Appeal from Pulaski Circuit Court.
WILLIAM WADDLE, EDW. COLSTON, MAURICE L. GALVIN and GALVIN & TRACY for appellant.
W.M. CATRON and J.W. COLYAR for appellee.
Reversing.
Appellant was defendant in the trial court, and it has appealed from a judgment of $10,000.00 recovered against it by the plaintiff. On the night of March 11-12, 1923 plaintiff, who is sheriff of Pulaski county was a passenger on the defendant's train No. 13, en route from Lexington to Somerset, and at a point near Pulaski, this train was stopped on account of some roofing that had blown on to the track. Train No. 43, which was following No. 13, ran into the rear of it, and the plaintiff claims to have been injured in that collision. A violent storm was raging at the time, which had cut the electric block signal system. The conductors of both of these trains were advised that these blocks were out, and to go through under control without stopping. Thus, this collision was the result of the inexcusable negligence of the defendant. At the time of the collision, Ross was asleep in the day coach, with his head leaning on or against the back of the seat in front of him. The train was struck with considerable force. Ross was knocked from his seat and fell on his knees between the seats. A suit case was knocked out of a rack and fell on a young lady's head, and it cut her head slightly. These two seem to have been the only ones who sustained any injury. The impact was not sufficient to break any windows in the coach. Ross appears to have been unconscious for some time, and to revive him, some of his fellow passengers raised the window and let the wind blow the rain into his face. A taxi was procured and he was taken to Somerset to the house of Dr. S.G. Cain, but for some reason, this doctor did not testify in this case. The next morning, with assistance, he walked to the hospital of Dr. A.W. Cain. He remained there two or three weeks. He then went home and was at home, as he says, for eight or nine weeks, before he went to his office. He says he suffered in his chest and in the back of his neck, and still suffers intensely. He says that he cannot walk, yet the evidence shows he has walked to his office; that he has gone fishing; that he has taken part in two moonshine raids; that he has made trips to Louisville, Cincinnati, Lexington and other places; that he collected taxes as usual; that he took part in the Dawson-Fields political campaign, and accompanied Mr. Dawson from Somerset to Monticello, over very rough roads; that he has ridden horseback and led the parade at the county fair just before the trial; that he waited upon the court as sheriff, and at the June term, before this trial, a drunken man entered the court room and made some disturbance. Plaintiff and two other men rushed back to where he was, seized him, and dragged him into a back room. There is other evidence in the record tending to show that the plaintiff is not an entire physical wreck. How much his nervousness is the result of his habits, we cannot say. He admits he has been drinking, but says "Not enough to hurt." He denies having been intoxicated, but admits having been comfortably full four or five times, and that every time he has been away he has got a pint of whiskey and drunk it, and admitted that ater a trip to Louisville and Lexington, upon his return home, he went to the hospital. There is in this record, the evidence of several doctors, none of whom testify that liquor would be beneficial to plaintiff in his condition, and several say it would be very detrimental.
Plaintiff claims to be suffering from traumatic neurasthenia. Upon the trial of this case, an X-ray picture of plaintiff's chest, made by Dr. Tate, a dentist, was exhibited, and it was claimed by Dr. Tate that this picture showed that the plaintiff had sustained a fracture of both of his first ribs at the point where they join the sternum or breastbone; but he admitted on cross-examination that he might be mistaken. He further said that he had taken X-ray pictures of a number of broken ribs, and that he never saw a picture like the film he exhibited to the jury. The doctor admitted that he had never treated anyone for a broken rib, nor had he taken any special training or instruction under anyone, in the taking of such pictures. He admitted that X-ray films are difficult to read, and that he had never taken any special instruction in the reading of them. Surgeons of vast experience, shown to be skilled in radiography and general anatomy, were introduced, and testified that the skiagraph made by Dr. Tate did not show a fracture of any of the ribs of the plaintiff, but, on the contrary, showed an absolutely normal condition of the ribs, for a man of his age. Evidently, the plaintiff is neurasthenic. and his counsel strenously argues that his is a case of traumatic neurasthenia. No one says that directly, but his doctor says: "He seems to suffer from what doctors term a traumatic neurasthenia." He doesn't say...
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