Consolidated Coach Corporation v. Hopkins

• Decision Date: 26 February 1929
• Citation: 228 Ky. 184,14 S.W.2d 768
• Parties: CONSOLIDATED COACH CORPORATION v. HOPKINS.
• Court: Kentucky Court of Appeals

14 S.W.2d 768

228 Ky. 184

CONSOLIDATED COACH CORPORATION v. HOPKINS.

Court of Appeals of Kentucky

February 26, 1929

Appeal from Circuit Court, Shelby County.

Suit by Julia Hopkins against the Consolidated Coach Corporation. Judgment for plaintiff, and defendant appeals. Affirmed.

Keenon & Huguelet, of Lexington, for appellant.

Gilbert Pickett & Matthews, of Shelbyville, for appellee.

STANLEY C.

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 that 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 case 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 and consequent injury is not within the reasonable reach or knowledge of the plaintiff, then he may, especially in actions against carriers, go to the jury upon evidence of negligence and resulting injury without being required to specify the particular cause of the negligence. And this, by the application of the well-recognized rule of res ipsa loquitur, which means, 'the thing speaks for itself.' * * * 'The accident, the injury and the circumstances under which they occur, are in some cases sufficient to raise a presumption of negligence, and thus cast upon the defendant the burden of establishing his freedom from fault. * * * Where a thing which causes the injury is shown to be under the management of the defendant, and the accident is such as in the ordinary course of things does not happen if those who had the management of it used proper care, it affords reasonable evidence, in the absence of an explanation by the defendant, that the accident arose from a want of care."'

The appellant has no cause to complain of the submission of the case to the jury.

3. The instruction on the measure of damages is as follows: "If the jury finds for the plaintiff it should find for her such a sum in damages as it believes from the evidence will reasonably compensate the plaintiff for the reasonable expense of the care of a doctor, if any, not to exceed $200.00, the amount claimed, and for any mental and physical pain endured by her or it is reasonably certain she will endure in the future, if any, as a direct result of the injury, if any, not to exceed in all $5,200.00, the amount claimed in the petition."

It is claimed the instruction is erroneous in two respects: (a) In the absence of an allegation of permanent injury nothing should have been allowed for future pain and suffering; and (b) although there was an allegation of $200 expenses incurred for medical services, the evidence did not authorize special damages to that extent.

(a) The petition charges that the negligent operation of the car as above stated caused plaintiff "to be thrown and jostled in her seat, wrenching the muscles in her back, bruising and wrenching her body, causing her internal organs to become misplaced and otherwise injuring her upon her legs, body and neck and causing her to suffer great physical pain and mental anguish," and "that by reaso thereof she will continue to suffer great pain and to become weak and nervous and unable to perform her wifely functions and household duties."

The evidence as to the injuries causing future pain and suffering by plaintiff was sufficient, as will be observed from the statement hereinafter given.

The question raised by appellant may be stated in the abstract Is it necessary to charge and prove permanent injury in order to recover for pain and suffering to be endured after filing of the suit or trial of the case? The answer is suggested by an axiomatic question: Should it be shown that plaintiff would certainly suffer for a period of five years from injuries sustained, would it be...