L. & N. R. R. Co. v. Fox
| Decision Date | 02 November 1875 |
| Citation | 74 Ky. 495 |
| Court | Kentucky Court of Appeals |
| Parties | L. & N. R. R. Co. v. Fox. |
While the appellee was a passenger on the appellant's road the train was thrown from the track and the coach in which he was riding was precipitated down an embankment of several feet and turned over. His right ankle and foot were so crushed between broken timbers of the car as to render it necessary, in order to save his life, to amputate the leg just below the knee. His left leg was badly bruised, the bones separated and the ligaments ruptured. His crushed foot became fastened between shattered timbers, and he was unable to get out of the car, and fellow passengers were unable for some time to remove him. Before he was removed the cars in front of the one he was in took fire, and during the time he was detained in the car, in addition to his physical sufferings, he must have suffered greatly from the apprehension of being burned to death. He was removed from the scene of the accident to a neighboring farm-house, where his right leg was amputated and the left was dressed. From thence he was removed to Louisville, where he lay for weeks in a critical condition, his life being for a considerable time despaired of. His sufferings were very severe, and he expended large sums in hiring surgeons and nurses, and in other expenses of being cured.
This action was brought to recover $150,000 damages for the injuries suffered, the expenses of cure, and the value of his baggage (estimated by him at $500) which was burned in the baggage car.
At the time of the trial the left leg was still weak and often painful, and, when he would walk even a short distance upon it, would swell and cause suffering. The medical testimony conduced to prove that the left leg would never regain its original strength, and that there was danger of the formation of abscesses on it and of necrosis of the bone about the ankle, which would render amputation of the foot necessary. This fear was not, however, entertained by all the medical witnesses.
Verdict and judgment having been rendered for the appellee, and the appellant's motion for a new trial having been overruled, this appeal is prosecuted to reverse that judgment.
The evidence tended to prove that the train was thrown from the track in consequence of a broken rail, and showed without contradiction that a broken rail was discovered in the track, at the place where the accident occurred, two days before. Whether the break had been repaired in such manner as to render the track secure, or whether it was the sole cause of the accident, the evidence was conflicting. It is conceded, however, by counsel for the appellant that the evidence authorized the jury to find that the accident occurred in consequence of the negligence or carelessness of the servants of the company, and we are not asked to disturb the verdict on the ground that it is against the weight of the evidence, and we need not therefore recite the facts the evidence tended to establish. Three grounds are relied upon for a reversal —
1. That the court erred in allowing illegal evidence, offered by the appellee, to go to the jury.
2. That the court erred in modifying, at the instance of the appellee, instruction No. 12, asked by the appellant.
3. That the damages are excessive, appearing to have been given under the influence of passion or prejudice.
1. The appellant's road is divided into sections of several miles in extent, and the immediate supervision of the track in each is committed to a "section boss" and several hands, whose duty it is to pass along the line frequently and keep it in repair. The accident occurred on a section then under the control of one Howard as "section boss;" and the appellee was permitted to prove, against the objections of the appellant's counsel, that other portions of Howard's section were in bad condition. The portions of the track to which that evidence related were so remote from the scene of the accident that they could not have contributed to it in any degree whatever.
The general condition of the road was not involved in the issue to be tried. The question was whether the train had been thrown from the track in consequence of the negligence of the company or its agents or servants, and evidence of negligence or carelessness which could not have contributed to that result was clearly incompetent. But when the court came to instruct the jury they were told not to consider any alleged defects in any part of the road other than such as directly caused or immediately contributed to the injury of the plaintiff, and that all testimony as to defects at other times and places was withdrawn from their consideration.
As it is conceded that the legal evidence heard by the jury was sufficient to warrant a verdict against the appellant, and the jury were told to limit their finding to compensatory damages, we do not feel authorized to reverse the judgment for the error in admitting this evidence. Had the jury been permitted to give punitive damages, the admission of the evidence might have been such error as to require a reversal on that ground; but as they were limited to compensation, we think the error, if not cured by the instruction, was not calculated to prejudice the substantial rights of the appellant.
2. The appellant's counsel asked the court to instruct the jury as follows, viz.:
The foregoing instruction was given by the court, but with this qualification asked by appellee, viz.:
"But if the jury believe from the evidence that frost or extreme cold was not the sole cause of the breaking of said rail, but only contributed thereto, and that the railroad track, where said rail broke, was in an unsafe and dangerous condition, that might have been remedied or guarded against by the exercise by defendant's employees of the highest degree of care and skill then practicable and then known to track repairers, and that such unsafe and dangerous condition of said railroad track of defendant at said point also contributed to cause the breaking of said rail jointly with the said frost and extreme cold, then the law is for the plaintiff, and he is entitled to compensatory damages."
Counsel do not question the correctness of the modification, but insist that as the instruction asked by them was correct it should have been given as asked, and then if opposing counsel desired to have the proposition contained in their request submitted to the jury it should have been presented as a separate and distinct instruction, and should not have been engrafted on the other as a modification.
It seems to us to have been altogether proper to append the one to the other. In the instruction as asked by the appellant the jury were told that if the accident was wholly caused by a fresh break in the rail, and the break was wholly caused by frost, they should find for the defendant. The appellee had a right then to have the jury told that if extreme cold was not the sole cause of the break, but contributed thereto, jointly with the negligence or carelessness of the appellant's agents or servants, the law was for the plaintiff.
The easiest and most natural mode of presenting the whole law upon this point was adopted by the court, and we are unable to perceive that this can have prejudiced the rights of the appellant.
3. The evidence tended to prove that the appellee's baggage was worth $500, and that the expenses of his cure amounted to the sum of $5,000. The jury found a verdict for $35,500; and whether that amount is so great as to make it the duty of this court to reverse the judgment on that ground alone, is the only remaining question.
The court, at the instance of the appellee, instructed the jury if they found for the plaintiff they should find such sum, not exceeding the amount claimed, as upon all the evidence they believed would fairly compensate him for the injuries received, expenses incurred, and losses suffered as the direct results of the accident; and then also, at the appellee's request, told them that compensatory damages as used in the instructions could include only the following items:
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