Baries v. Louisville Electric Light Co.

Opinion of the court by JUDGE PAYNTER Reversing. The arm of appellant has withered and become useless by coming in contact with a live wire of appellee. It occurred while painting on a. house to which the wire was attached. Appellant claims that he received the injury by reason of appellee’s negligence in not having the wire properly insulated. This was the question of fact at issue on the trial of the case. The jury returned a verdict for the appellants and fixed his damages at one cent. He asks a reversal on the grounds (1) that the verdict fixing damages is flagrantly against the weight of the evidence; (2) that the court erred to his prejudice in the admission of evidence. It is the contention of appellee that under section 311, Code Civ. Prac., the judgment can not be reversed because of the smallness of damages in an action for an injury to the person. The evidence shows that he was earning and could earn at his trade as a painter $15 a week, and that the [833] time lost in consequence of bis injury would equal a sum greater than $800. Tbe loss of time resulting from a personal injury is a pecuniary loss in contemplation of section 341, and it is a ground for reversal if tbe verdict is for tbe plaintiff, and it does not award damages to cover sucb pecuniary loss. Taylor v. Howser, 12 Busb, 468; Ray v. Jeffries, 86 Ky., 367, 9 R., 602, 5 S. W., 867; Stroh v. South Covington & Cincinnati Street Ry. Co. (opinion delivered March 23, 1904) 25 R., 1868, 78 S. W., 1120. This-court has repeatedly held that special damages must be pleaded. It was not sufficiently done in this case. It is averred in tbe petition that since tbe plaintiff received tbe injury be “has been and is unable to do any bind of work.” Tbe averment is not sufficient; hence tbe appellant is not entitled to a reversal because of tbe smallness of damages» Ray v. Jeffries; Stroh v. South Covington & Cincinnati Street Ry. Co., supra; Jesse v. Schuck, 12 S. W., 304, 11 Ky. Law Rep., 463. While it is stated by tbe jury that the verdict is for tbe, plaintiff, it was, in effect, onei for tbe defendant. It can not be believed that any jury would so lack in judgment and proper appreciation of tbe serious loss resulting from a withered arm as to believe that one cent would compensate tbe injured party. In determining whether or not appellant was prejudiced by tbe admission of improper evidence, we will consider its effect tbe same as if tbe verdict bad been for tbe appellee. At the time of tbe injury appellant was in tbe employ of McKelvey, who bad tbe contract for painting tbe bouse. It is contended that tbe court erred in admitting evidence that McKelvey and some of bis employes bad notice that appellee desired to cut tbe wire, when tbe painting should progress far enough for tbe men to work on that portion of tbe building where tbe [834] wires were situated. Such evidence would be incompetent, as it would be allowing appellee to show the negligence of appellant’s employer to exonerate it from a liability for negligence which was the proximate cause of the injury. The neglect of McKelvey was not a contributory act imputable to the appellant. If appellee was negligent in failing to properly insulate its wire at the place where appellant had the right to be in the discharge of his duties, it certainly could not be relieved of the consequence of its negligence because some one other than the appellant might have by performing-a duty prevented the injury. While there is no evidence that such notice was. given to McKelvey, evidence was admitted to show a general custom prevailed which required contractors to notify appellee they were working on a house to which its wires were attached, and when this was done it always cut the wires. This evidence was intended to show that there was a duty upon appellant’s employer or himself to give the appellee notice that work was •being done on the house. If that custom required the employer or his foreman to give such notice, their failure to do so could not release the appellee from the consequences of its negligence in failing to properly insulate the wires. If such evidence is admissible under any circumstances, it was not in this case, because the appellee introduced evidence showing it had notice the day before the accident that the painters were at work on the house where the accident happened, and Mr. Kinkead, one of its electricians, testified that appellee cut the wires on houses when it had such information. It is the purpose of the notice that men are at work where appellee has its wires to give it an opportunity to cut them. If it had the notice, then the evidence of the general custom (if evidence of it is admissible in any case) was not admissible in this case, for, if it had been followed, [835] the appellee would have been told a fact of which it was already apprised. Besides, the evidence, taken in its entirety, did not show that there was any general custom which could impose a duty upon an ordinary employe of a contractor to give such notice. The admission of the evidence as to the general custom was prejudicial to the rights of the appellant. In giving instructions to the jury the court seems to have followed McLaughlin v. Louisville Electric Light Co., 100 Ky., 173 18 R., 693, 37 S. W., 851, 34 L. R. A., 812, and other cases to the same effect. The judgment is reversed, with directions for proceedings consistent with this opinion.