Owings' Adm'R v. Gradison Construction Co.
| Decision Date | 13 October 1931 |
| Parties | Owings' Administrator v. Gradison Construction Company. |
| Court | United States State Supreme Court — District of Kentucky |
1. Appeal and Error. — Plaintiff could not complain of instruction on negligence under which jury found for him.
Plaintiff could not complain even if instruction was erroneous, since it was necessary for jury to have found that defendant was negligent to return verdict for plaintiff.
2. Appeal and Error. — Plaintiff could not claim error because of exclusion of evidence showing defendant's negligence, where verdict was for plaintiff.
3. New Trial. — $400 damages for death of one who had been earning about $90 monthly as school teacher, and who had life expectancy of 26 years, held not so inadequate as to require a new trial (Civil Code of Practice, sec. 341).
Damages were not so inadequate as to require new trial, in view of Civil Code of Practice, sec. 341, which declares that a new trial shall not be granted on account of smallness of damages in action for injury to person or in any other action in which damages equal the "actual pecuniary injury" sustained, since the quoted phrase has been given the restricted meaning of money actually expended or expenses incurred for special damages, such as medical treatment, loss of time, and the like, which are capable of being ascertained with certainty.
Appeal from Montgomery Circuit Court.
M.C. REDWINE, HENRY WATSON and TURNER & CREAL for appellant.
W.B. WHITE and ROBT. H. WINN for appellee.
Affirming.
In August, 1926, the appellant's intestate, Laura Owings, was killed and her two companions injured when struck by a loaded truck near the east limits of Mt. Sterling. Suits for damages were filed against the appellee, Gradison Construction Company, and James W. Richards. There have been two successful appeals from judgments favorable to the defendants, which are reported, respectively, in 224 Ky. 427, 6 S.W. (2d) 481, and 236 Ky. 270, 32 S.W. (2d) 1014. Upon another trial a jury awarded damages in the sum of $100 and $900, respectively, for the two persons injured, and $400 for the death of Laura Owings. The appeal is by her administrator only.
Vigorous argument is made that the court erred to the prejudice of appellant's substantial rights in failing to incorporate in the instruction defining the duties of the driver of the truck the further duty to have sounded his horn and given other warning as he approached the deceased and her companions, it being admitted that he did not do so; and also in giving an instruction under the rule that, in case of an emergency neither produced nor contributed to by the one seeking to rely on it, a failure to choose the safer of two courses of action as manifested by subsequent events will not constitute negligence when the course selected was one dictated by ordinarily prudent action and such as an ordinarily prudent man would have selected under the circumstances. It seems to us that, under the facts, the instructions were authorized and correct, but, whether so or not, the appellant cannot be heard to complain, for under those instructions the jury found for him. In order to return any verdict for the plaintiff, it was necessary to have found that the driver of the truck was negligent. Rossi v. Jewell Jellico Coal Co., 157 Ky. 332, 163 S.W. 220; Veach's Adm'r v. L. & I. Ry. Co., 190 Ky. 678, 228 S.W. 35; Maryland Casualty Co. v. Automatic Fire Protection Co., 200 Ky. 750, 255 S.W. 548.
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