Louisville & Interurban R. Co. v. Frazee

Decision Date26 February 1918
Citation179 Ky. 488
PartiesLouisville & Interurban Railroad Company v. Frazee.
CourtKentucky Court of Appeals

Appeal from Jefferson Circuit Court (Common Pleas Branch, Second Division).

ALFRED SELLIGMAN, HUSTON QUINN and STRAUS, LEE & KREIGER for appellant.

EDWARDS, OGDEN & PEAK for appellee.

OPINION OF THE COURT BY WILLIAM ROGERS CLAY, COMMISSIONER — Affirming.

This is a personal injury action in which plaintiff, Martha Frazee, recovered of the defendant, Louisville & Interurban Railroad Company, damages in the sum of $5,500.00, and of its co-defendant, Charles Schneidtmiller, damages in the sum of $500.00. The damages were apportioned as follows: For mental and physical suffering, $3,480.73; for medical and surgical treatment, $945.50; for nurse hire, $215.00; for traveling expenses, $151.48; for cottage at Nantucket, $250.00; for infirmary expenses, $772.73; for drugs and medicines, $184.56. Only the Louisville and Interurban Railroad Company appeals.

The accident happened on July 2, 1914. Plaintiff was standing in a small waiting room located five or six miles from the city of Louisville and near the intersection of the company's right of way and the Blankenbaker road. It was her purpose to take an inbound car to the city. At that time an automobile truck belonging to Charles Schneidtmiller and driven by his son, collided with the street car going east. The truck struck the waiting room and plaintiff was knocked a distance of ten or fifteen feet. She received a scalp wound and several bruises on her arms and limbs. She was confined to her bed for about ten days and for part of the time during the next two weeks. From that time on, she began to lose flesh and grow very nervous. She felt very bad and would cry most all the time. A few weeks later, she developed weeping eczema. Her whole body became inflamed and she suffered intensely. For a while she remained in Louisville and was treated by Drs. Koehler, Bloom and Solomon, and blood tests were made by Drs. Baldauf and Allen. Her condition gradually grew worse and in the month of February she was taken to an infirmary in Boston where she was treated by several physicians, including Drs. Coffin and Fawcett. After remaining in Boston for several weeks, she was taken to Nantucket where a cottage was rented for her and her family for the summer months. She remained at Nantucket until the following September, when she returned to her home in Louisville. Her condition was such that it was necessary for her to travel on a stretcher. At the time of the trial in June, 1916, her skin trouble had practically disappeared and her health was beginning to improve. According to Drs. Koehler and Solomon of Louisville, and Drs. Coffin and Fawcett of Boston, the diseased condition of her skin was attributed to the nervous shock which she received in the accident. According to Drs. Bloom, Marshall and Ravitch, the skin trouble was not caused by the accident.

Among the grounds urged for a reversal is, that the averments of the petition with respect to plaintiff's injuries were not sufficient to authorize proof of the skin eruption and to support a finding of damages on that account. The allegations of the petition are as follows:

"The plaintiff was struck, bruised and injured by parts of said automobile and station striking her and she was thrown upon the ground with force and violence; she was cut and bruised on the side of her head and bruised and injured about and over her body generally and at said time received a great shock to her nervous system and from said injuries she suffered and will continue to suffer great mental and physical pain and anguish; her injuries are permanent and her power to earn money has been permanently impaired to her great damage in the sum of twenty-five thousand dollars."

Having pleaded a shock to her nervous system and her consequent suffering therefrom, we conclude that evidence of the skin eruption was admissible as an external symptom tending to show the effect and extent of the nervous shock, Louisville Rwy. Co. v. Gaugh, 133 Ky. 473, 118 S. W. 276, especially in view of the fact that depositions concerning the skin eruption were taken several months before the trial and defendant could not complain of such testimony on the ground of surprise.

Another ground urged for a reversal is that the court improperly permitted the mother of plaintiff to testify that there was no blood taint in the family. Since the burden was on plaintiff to show that the skin eruption resulted from the accident, evidence that such condition was not attributable to some other cause was clearly admissible. Instruction No. 5 is as follows:

"If you find for the plaintiff you will state in your verdict which defendant you find against or whether you find against both defendants, and in awarding damages, if you find for the plaintiff, you may award a common sum against both the defendants, or you may award a different sum against the defendant, Railroad Company, and the defendant, Schneidtmiller." This instruction is assailed on the ground that it failed to furnish the jury any standard by which separate damages should be assessed, but gave the jury free rein to fix the damages without taking into consideration the extent of each defendant's negligence. In reply to this criticism it is sufficient to say that the instruction is correct so far as it goes and has frequently been approved by this court, Broadway Coal Mining Company v. Robinson, 150 Ky. 715, 150 S. W. 1000; Saad v. Brown, 144 Ky. 181, 137 S. W. 834, and if the defendant desired a more specific instruction apportioning the damages on the basis of each defendant's participation in the wrong, such an instruction should have been offered. No such instruction having been requested, the defendant can not complain of the court's failure to give it....

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