Consolidated Coach Corporation v. Hopkins

• Decision Date: 26 February 1929
• Citation: 228 Ky. 184
• Parties: Consolidated Coach Corporation v. Hopkins.
• Court: United States State Supreme Court — District of Kentucky

Page 184

228 Ky. 184

Consolidated Coach Corporation v. Hopkins.

Court of Appeals of Kentucky.

Decided February 26, 1929.

1. Trial. — Submission of case on both of two acts of negligence alleged to have caused injury to passenger in motorbus held not erroneous, in that there was but one cause of action resting on two negligent acts.

2. Trial. — Party may rely on any one or several acts of negligence of which he considers defendant guilty, and it is proper for court to submit any or all of them if there is evidence tending to sustain allegations.

3. Carriers. — Negligence in respect to injury to bus passenger in operation of bus, and in permitting defective brakes and steering equipment, held for jury.

4. Negligence. — Actionable negligence is founded on duty and failure on part of one on whom it devolves to discharge that duty either by acts of commission or omission.

5. Carriers. — Duty of common carrier to its passengers is to exercise highest degree of care, and it is bound to provide for their safety so far as human skill, care, and foresight are capable of securing that end.

6. Carriers. — Bus passenger suing for injuries sustained in accident did not have burden of proving latent defect, if any, in brakes, and that same was known to defendant or could have been discovered in exercise of reasonable care.

7. Negligence. — Though negligence is never presumed, nevertheless it may be inferred from proof of facts or circumstances.

8. Damages. — Instruction, in action against bus company for injuries to passenger, authorizing recovery of damages for future pain and suffering, held not erroneous, though there is allegation of permanent injury or evidence thereof.

9. Trial. — Instructions must be based both on pleading and evidence, and issue made by pleading must be supported by evidence; and vice versa.

10. Damages. — Where special damages are claimed and proven, limit of recovery, when properly pleaded, should be maximum amount shown by evidence, unless it exceeds that claimed in petition, in which event recovery must be limited to that claimed.

11. Damages. — Evidence, in action for injuries to bus passenger, relative to medical expenses, held sufficient to authorize recovery of maximum amount of $200 claimed in petition.

12. Damages. — Damages in the amount of $2,200 for internal injury, causing pains in back and head and nervousness, held not excessive.

13. Appeal and Error. — Verdict of jury will not be set aside on ground damages were excessive, unless damages awarded are so great as to strike mind on first impression as having been superinduced

by passion and prejudice, or unless so grossly excessive as to shock the conscience and raise irresistible inference of having been influenced by other considerations than law and evidence.

14. Appeal and Error. — Though verdict may be large, it will not be set aside as excessive when there is evidence reasonably supporting it.

15. Appeal and Error. — In action by passenger against bus company to recover for injuries, admitting testimony of plaintiff, on cross-examination, relative to delay in asserting claim because of fact that bus drver had stated he would have some one from insurance company come to see her, though improper as informing jury that defendant was carrying indemnity insurance, nevertheless held not prejudicial, in that there was nothing to indicate that plaintiff was trying to do anything other than to respond to questions and to explain delay in making claim.

Appeal from Shelby Circuit Court.

KEENON & HUGELET for appellant.

GILBERT, PICKETT & MATTHEWS for appellee.

OPINION OF THE COURT BY COMMISSIONER STANLEY.

Affirming.

A bus of the appellant, Consolidated Coach Corporation, a common carrier, being driven from Louisville to Lexington, left the road on a compound curve a short distance east of Shelbyville on the morning of February 2, 1927. It ran down an embankment a short distance over rough ground until it struck a fallen tree or other obstacle. It did not turn over. The appellee, Mrs. Julia Hopkins, who was one of the passengers, instituted this suit for damages sustained in that accident. A judgment of $2,200 was recovered, from which the appeal is prosecuted.

1. The petition charges the negligent operation of the motorbus and also defective brakes, steering gear, and other equipment, of which the defendant had knowledge, or by the exercise of ordinary care could have discovered in time to avoid injuring plaintiff. Both items of negligence were submitted to the jury under an appropriate instruction. Appellant insists that if the accident was the result of negligence, it was either in the operation or defective equipment; that if proper to submit the case at all, it should have been on one or the other ground of negligence, but not both of them. Clearly, there was but one cause of action resting, according to the petition, upon two negligent acts. A party may rely upon any one or several acts of negligence of which he considers the defendant guilty, and it is proper for the court to submit any or all of them if there is evidence tending to sustain the allegations. Louisville & N.R. Co. v. Gaines, 152 Ky. 255, 153 S.W. 216; Rehkamp v. Martin, 198 Ky. 34, 247 S.W. 1115. The case of Cincinnati, N.O. & T.P.R. Co. v. Goldston, 156 Ky. 410, 161 S.W. 246, relied on by appellant, is not at variance with this rule. The vice in the instruction condemned in that case was the inclusion of a third act of negligence not pleaded. The submission of the two acts of negligence relied on was approved.

2. It is further contended that there was no evidence of negligence in either particular, and the court should have sustained appellant's motion for a directed verdict. It is merely shown that the motorbus failed to make the curve and ran off the road; that the driver tried to apply the brakes, or did apply them, and later said the reason why the car left the road was that the brakes would not work. The driver did not testify, because, as we are informed in brief, he could not be located.

Actionable negligence is founded on a duty and the failure on the part of one on whom it devolves to discharge that duty either by acts of commission or omission. Cincinnati, N.O. & T.P.R. Co. v. Harrod's Adm'r, 132 Ky. 452, 115 S.W. 699; Helm v. Cincinnati, N.O. & T.P.R. Co., 156 Ky. 240, 160 S.W. 945; Brown's Adm'r v. Louisville & N.R. Co., 97 Ky. 236, 30 S.W. 639, 17 Ky. Law Rep. 145; Walker v. Louisville R. Co., 182 Ky. 299, 206 S.W. 484.

The duty of a common carrier to its passengers is to exercise the highest degree of care (Louisville & N.R. Co. v. Johnson, 168 Ky. 351, 182 S.W. 214, L.R.A. 1916D, 514), and it "is bound to provide for their safety so far as human care, skill, and foresight are capable of securing that end." Morgan v. Chesapeake & O.R. Co., 127 Ky. 435, 105 S.W. 961, 32 Ky. Law Rep. 330, 15 L.R.A. (N.S.) 790, 16 Ann. Cas. 608. In Louisville & N.R. Co. v. Mitchell, 162 Ky. 253, 172 S.W. 527, it is said that where a passenger is shown to have suffered an injury, "the burden is upon the carrier to show that it could not have prevented it by the exercise of the utmost skill and foresight."

(a) Appellant argues that the burden was upon the plaintiff to prove the latent defect, if any, in the brakes, and the same was known to the defendant, or it could have been discovered by it in the exercise of ordinary care. But this contention cannot be sustained.

In Louisville & N.R. Co. v. Mitchell, supra, this quotation is given from the Morgan case: "When the passenger has proved his injury as the result of a breakage in the car or the wrecking of the train on which he was being carried, whether the defect was in the particular car in which he was riding or not, the burden is then cast upon the carrier to show that it was due to a cause or causes which the exercise of the utmost human skill and foresight could not prevent. And the carrier in this connection must show, if the accident was due to a latent defect in the material or construction of the car, that not only could it not have discovered the defect by the exercise of such care, but that the builders could not by the exercise of the same care have discovered the defect or foreseen the result."

It was therefore proper for the court under the evidence and authorities to submit to the jury this element of negligence.

(b) While there is no testimony of any specific negligent act of the driver in operating the bus, it is very apparent that the car would never have left the road had it been properly operated. The fact itself indicates negligence. It is true, generally speaking, that negligence is never presumed, but negligence may be inferred from proof of facts or circumstances. Chesapeake & O.R. Co. v. Rogers, 193 Ky. 571, 237 S.W. 18; John R. Coppin Co. v. Richards, 191 Ky. 720, 231 S.W. 229. The fact that the bus left the road under the circumstances shown is sufficient to support the plea of negligent operation. There was no evidence introduced by the defendant in explanation of the accident. The following extract from the opinion in Paducah Traction Co. v. Baker, 130 Ky. 368, 113 S.W. 452, 18 L.R.A. (N.S.) 1185, is pertinent and applicable to the facts of this case:

"It often happens that a passenger of a common carrier, who is injured by its negligence, is not able to point out the particular person or thing that caused the negligence, or describe in what it consisted, as the passenger does not know, and may not have any means of knowing. But, it does not follow from this that the passenger may not make out his cause of action, or a cause that would authorize a submission of the issue to the jury.

"It is a general rule that the plaintiff, in actions to recover damages for personal injuries, as well as in other cases, has the burden of proof, and must introduce evidence in support of the cause of action set out in his petition; but, if the cause that produced the negligence...