Louisville & N.R. Co. v. Stewart

• Decision Date: 25 February 1915
• Citation: 173 S.W. 757,163 Ky. 164
• Parties: LOUISVILLE & N. R. CO. v. STEWART.
• Court: Kentucky Court of Appeals

173 S.W. 757

163 Ky. 164

LOUISVILLE & N. R. CO. v. STEWART.

Court of Appeals of Kentucky.

February 25, 1915

Appeal from Circuit Court, Laurel County.

Action by Floyd Stewart against the Louisville & Nashville Railroad Company. From a judgment for plaintiff, defendant appeals. Reversed.

George G. Brock, of London, and Benjamin D. Warfield, of Louisville for appellant.

W. L Bruner, of London, and J. A. Craft, of Louisville, for appellee.

HANNAH J.

This is an appeal from a judgment of the Laurel circuit court rendered March 9, 1914, in favor of Floyd Stewart and against the Louisville & Nashville Railroad Company, for $1,000 damages for personal injuries received by the plaintiff on October 24, 1912, while employed as a laborer in the shops of defendant company in Louisville.

1. The petition contained no allegation as to the place of residence of the plaintiff, nor was it alleged that the defendant company's principal office and place of business was located in Laurel county, and the petition shows that the injuries complained of were received in Jefferson county. The defendant filed a special demurrer to the petition upon the ground that the petition showed that the court had not jurisdiction of the action, and of the overruling of this special demurrer appellant complains.

A special demurrer will only reach defects which are apparent upon the face of the petition. Section 92, Civil Code; Fentzka's Adm'r v. Warwick Constr. Co., 162 Ky. 580, 172 S.W. 1060; L. & N. R. Co. v. Mitchell, 162 Ky. 253, 172 S.W. 527.

And where the petition does not show that the county where the action is brought is not the proper county in which to bring it, a special demurrer will be unavailing. Fentzka Case, supra. In such case, objection to the jurisdiction of the court must be made as required by section 118, Civil Code, and, unless so made, the want of jurisdiction is waived. Richardson v. L. & N., 129 Ky. 449, 112 S.W. 582, 33 Ky. Law Rep. 972. The defendant, having failed to challenge the jurisdiction of the Laurel circuit court in any manner other than by the special demurrer, waived its objection thereto.

2. The plaintiff alleged in his petition that he was engaged in loading bolts on a wagon or truck in defendant's shops when the wheels of one side of the truck broke through the concrete floor on which it stood, and the truck fell against plaintiff, causing him to be caught between the truck and a bolt-shearing machine, and thereby injured him. He alleged that the defective condition of the concrete floor was not known to him; but failed to allege that by ordinary care he could not have discovered it, or that he had not equal means of knowledge with the defendant, to note the defect; and, because of the failure so to allege, the appellant insists that the court erred in overruling its general demurrer to the petition.

The rule in this state is that a general allegation of want of knowledge includes constructive and imputed knowledge as well as actual knowledge, and that it is unnecessary to negative specifically assumption of the risk and contributory negligence.

In L. & N. v. Carter, 112 S.W. 904, decided October 22, 1908, it was said:

"Counsel further insists that the petition is fatally defective in not alleging that the plaintiff could not by the exercise of ordinary care have seen the exact condition of the platform, or in not alleging that plaintiff did not have equal means with the defendant of knowing of the defect. The rule contended for by counsel is no longer the law in this state. The allegation that the unsafe and dangerous condition of the platform was unknown to plaintiff was sufficient. Peter & Melcher S. S. Works v. Green, 76 S.W. 844, 25 Ky. Law Rep. 946; Pfisterer v. J. H. Peter & Co., 117 Ky. 501, 78 S.W. 450 ," in both of which latter cases, the case of Bogenschutz v. Smith, 84 Ky. 330, 1 S.W. 578, 8 Ky. Law Rep. 376, is distinguished.

See, also, Willie v. E. T. Co., 84 S.W. 1166, 27 Ky. Law Rep. 335; Ross Paris Co. v. Brown, 121 Ky. 821, 90 S.W. 568, 28 Ky. Law Rep. 813; L. & N. v. Irby, 141 Ky. 151, 132 S.W. 393. The case of City of Henderson v. Sizemore, 104 S.W. 722, 31 Ky. Law Rep. 1134, holds that it is unnecessary to negative contributory neglect, but also contains some language based on the Bogenschutz Case, supra, by way of dicta, to which extent the case of L. & N. v. Carter, supra, overrules it.

The trial court properly overruled the general demurrer to the petition.

3. The court instructed the jury upon the measure of damages, as follows:

"No. 2. If the jury finds for the plaintiff, you will allow him such sums as you may believe from the evidence will fairly and justly compensate him for the physical pain and mental anguish, if any of either he was caused to endure, and which you may believe from the evidence it is reasonably certain he will hereafter endure, as the direct and proximate result of such injury; and, in addition thereto, such sum as you may believe from the evidence will reasonably compensate him for any loss of time which he suffered by reason of said injury, if any; but you will not allow him for any greater length of time than 20 days, but in all your findings, if you find for the plaintiff, you will not exceed the sum of $3,000, the amount claimed in the petition."

It was alleged in the petition that:

"Thereby the plaintiff lost from his work as laborer for the defendant 22 days, that he was earning at the time of said injury (blank) dollars, * * * and has been put to much expense and trouble by reason of said injury, and has lost much valuable time."

There was no averment of permanent injuries, nor that plaintiff would suffer physical pain or mental anguish after the institution of the action.

Appellant contends that the instruction given was erroneous in allowing a recovery for any pain and suffering which it was reasonably certain the plaintiff would endure after the trial, because there was no averment of future pain and suffering. It was held in Alexander v. Humber, 8 Ky. Law Rep. 619, that "future suffering" is an element of general damages, and need not be specially pleaded. It may be conceded that permanent impairment of earning power must be specially pleaded. L. & N. v. Moore, 150 Ky. 692, 150 S.W. 849. But future suffering and permanent impairment of earning power are not synonymous terms. The plaintiff at the date of the trial may be in such condition that future suffering is reasonably to be expected, although his injuries may not be such as to permanently impair his power to earn money.

The rule is that, where ...