Muldraugh's Hill, Campbellsville and Columbia T. P. Co. v. Maupin
| Decision Date | 11 November 1880 |
| Citation | 79 Ky. 101 |
| Parties | Muldraugh's Hill, Campbellsville and Columbia Turnpike Co. v. Maupin. |
| Court | Kentucky Court of Appeals |
APPEAL FROM TAYLOR CIRCUIT COURT.
P. B. THOMPSON, JR., FOR APPELLANT.
JAMES M. WOOD AND RUSSELL & AVERITT FOR APPELLEE.
D. G. MITCHELL FOR APPELLEE.
CHIEF JUSTICE COFER DELIVERED THE OPINION OF THE COURT.
We perceive no valid objection to the first or second paragraph of the petition, but the third fails to state any facts whatever. It simply sums up the damages claimed to have resulted from the facts stated in the preceding paragraphs, and prays judgment for the aggregate of the sums claimed in the preceding paragraphs. The demurrer to that paragraph should have been sustained.
We are also of the opinion that the court should have sustained the appellant's motion to require the appellee to elect which of the paragraphs he would prosecute.
The petition plainly shows that the two paragraphs relate to the same occurrence and injury. It is expressly so alleged, and the only difference between them is, that the facts are set out more in detail in the second than in the first paragraph, and gross negligence is alleged in the latter and is not alleged in the former. The evidence required to support one would support the other. The allegation of negligence is sufficient to entitle the plaintiff to recover in an action like this for any degree of culpable negligence that may be established by the evidence.
When the petition shows that several paragraphs relate to the same cause of action, the plaintiff should be required to elect to prosecute one of the paragraphs, and the others should be stricken out, unless the plaintiff shall allege that the fact, as stated in one or the other of the paragraphs, is true, but he does not know which of them is true. (Sub-section 4, section 113, Civil Code.)
The court should not have permitted evidence of injury to the child to go to the jury; but as they were told they should not find any thing for the appellee on account of such injury, we should not reverse for that error alone. Evidence that another bridge near by was out of repair was also improperly admitted.
Dr. Bass' statement, that if he were examining the appellee for a pension, he would allow him one fourth, we understand to be his professional opinion that his capacity for labor is reduced one fourth by the rupture. This, we think, was competent. The jury cannot be supposed to be familiar with the character of that injury, or to be able, unaided, to properly estimate its effect in impairing the appellee's capacity to earn money, and hence it was proper to allow them to be enlightened by expert testimony. But the witness should not have been permitted to intimate what he regarded as proper compensation for the injury. That was a question for the jury, and on which expert testimony was not competent, nor should he have been permitted to intimate what the damage would be from apprehension of...
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