Louisville Lozier Co. v. Sallee

• Decision Date: 17 December 1915
• Citation: 167 Ky. 499,180 S.W. 841
• Parties: LOUISVILLE LOZIER CO. ET AL. v. SALLEE.
• Court: Kentucky Court of Appeals

180 S.W. 841

167 Ky. 499

LOUISVILLE LOZIER CO. ET AL. v. SALLEE.

Court of Appeals of Kentucky.

December 17, 1915

Appeal from Circuit Court, Jefferson County, Common Pleas Branch Third Division.

Action by William Sallee against the Louisville Lozier Company and another. Judgment for plaintiff, and defendants appeal. Affirmed as to appellant Lothrop, and reversed as to Louisville Lozier Company.

Bennett H. Young, James P. Helm, and M. W. Ripy, all of Louisville for appellants.

Stoll &amp Bush, of Lexington, Kohn, Bingham, Sloss & Spindle, and Emanuel Levi, all of Louisville, for appellee.

CLARKE J.

On the 10th day of November, 1912, appellee, William Sallee, was riding on a bicycle about 1 1/2 miles out of Lexington on the Harrodsburg pike, when he was overtaken by an automobile in which were appellant Howard Lothrop, Miss Harbison, and Mr. Harbison. The automobile was owned by appellant Louisville Lozier Company, of which appellant Howard Lothrop was president, and it was being driven by Miss Harbison from the left-hand front seat, it being a left-hand drive car. Appellant, Lothrop, was seated beside her on her right, and Mr. Harbison was in the rear seat.

The macadamized or used part of the pike at this place was 31 feet wide. In attempting to pass appellee on his left, the automobile struck and ran over him, from which he received injuries rendering him unconscious for four days. The wall of his chest was depressed, the muscles in his left arm were torn loose, several of his ribs were torn loose from the spine, his skull was fractured, necessitating an operation to remove the pressure from the brain, in which operation two pieces of his skull bone, each the size of a half dollar, were permanently removed, and in addition an aggravation by the accident of a pre-existing varicose condition of the veins of the scrotum rendered necessary their removal, in the course of which operation it became necessary to remove permanently one of his testicles. Several lesser injuries were inflicted.

In an action in the Jefferson circuit court to recover for these injuries, appellee recovered a judgment for $11,500 against the two appellants, Howard Lothrop and Louisville Lozier Company. After their motion and grounds for a new trial had been overruled, appellants prosecuted this appeal to this court.

Appellants assign as errors, for which a reversal should be had, the following: (1) The damages awarded are excessive. (2) Instructions 1 and 6 given the jury are erroneous and prejudicial. (3) The court erred in refusing to peremptorily instruct the jury to find for both defendants. (4) The court erred in permitting Dr. Cheatham to repeat to the jury a history of appellee's case given him by appellee at the time he examined appellee for the purpose of testifying and not for treatment. (5) The court erred in compelling appellant Lothrop to answer an inquiry as to how fast he had driven this automobile upon some other occasion. We will consider the alleged errors in the order in which they have been named.

I. Are the damages awarded in this case, $11,500, excessive?

The testimony shows the following of appellee's injuries to be permanent, although having been somewhat improved by treatment from their condition immediately following the accident, namely: Depression of the chest wall; injury to the muscles of his left arm; two holes in his skull resulting from an operation to relieve the results of the fracture, and the removal of one testicle. In addition to which there is testimony tending to show a permanent diminution of the hearing of one ear; a weakened physical condition that will not permit of his participating in athletics, or to do work, as before the accident; also the lessening of his mental ability, with the possibility, but not probability, that epilepsy may ensue as a result of the injury to his head.

It seems to us that a mere statement of these injuries to a young man 21 years of age, sound mentally, in good health, and a student in college is sufficient proof that the damages awarded are not excessive, certainly not such as to appear to have been given under the influence of passion or prejudice. Authorities cited by counsel for appellants and appellee are of but little value on this question for the reason that in none of them are the injuries similar to those in this case, but fit rather the conception of appellants or appellee as to the gravity of the injuries suffered by appellee herein, about which there is, of course, wide divergence.

II. Are instructions 1 and 6 given by the court erroneous?

Unfortunately we are unable to consider the instructions given by the court in this case because of the fact that they are not made a part of the bill of exceptions. The bill of exceptions was filed in the lower court on September 19, 1914, which was the last day in the succeeding term, as previously fixed by the trial court, upon which a bill of exceptions could be filed. The court on that day "examined, approved, signed, and certified" the bill of exceptions filed, and made it a part of the record. Five days thereafter appellants offered to file what is termed an amended bill of exceptions. This motion to file was submitted to the court, and on March 16, 1915, overruled. On March 18, 1915, the lower court entered the following order upon its order book:

"Upon motion of defendants Louisville Lozier Company and Howard Lothrop the amended bill of exceptions tendered herein September 24, 1914, is now made part of this record for the purpose of review upon appeal without being copied in the order book."

This so-called amended bill of exceptions which is not approved or signed by the court contains the instructions which were no doubt given to the jury. This court has upon too many occasions held that instructions not contained in the bill of exceptions cannot be considered here for us to abrogate that rule now. To permit an appellant to amend his bill of exceptions after it had been filed on the last day given him, and it had been approved, and the last thing done that the trial court has authority to do in the case, would render the provisions of section 334 of the Civil Code a nullity and give to the trial court the power to alter the record after it has passed beyond his control. We do not think the court had authority to make the amendment a part of the bill of exceptions, which opinion evidently was shared by the trial court, for he did not attempt to do so, but simply certified appellants' motion so that same might be considered by this court.

III. Did the court err in refusing to peremptorily instruct the jury to find for both defendants?

We do not think it was error for the court to refuse the peremptory instruction to find for appellant Lothrop, but that it was error not to have given it for appellant Louisville Lozier Company. While the three occupants of the automobile, the only eyewitnesses of the accident, testify to facts fixing the responsibility for the accident upon appellee, and absolving Miss Harbison from any negligence, their testimony is contradicted by evidence of other witnesses as to the location in the road of the place of the accident, which tends to show that appellee was run down at a point near the right-hand edge of the used portion of the road, 31 feet wide at that place. This was evidenced by a pool of blood, collar button, a scraped place in the road as where something had been dragged, and tracks of a bicycle and automobile, all on the right side of the pike where appellee should have been and where the automobile should not have been. This evidence in connection with appellee's own testimony that he was about 2 feet from the right edge of the road; that he heard no signal; that when he first knew of the automobile's presence, it was almost upon him; that he immediately attempted to pull further to the right when he was struck--we think demanded a submission of the case to the jury if appellants...