City of Hazard v. Combs

57 S.W.2d 669, 247 Ky. 728, 1933 Ky. LEXIS 447

• Court: Court of Appeals of Kentucky (pre-1976)
• Decided: February 24, 1933
• Status: Published

Opinion

Opinion op the Count by

Drury, Commissioner—

Reversing.

Tbe city of Hazard has appealed from a $1,000 judgment recovered against it by Mrs. Alma' Combs, aged 52, for personal injuries alleged to have been sustained by ber, as a result of tbe negligent operation of a truck used by tbe city in connection with its waterworks.

On December 22, 1930, a truck belonging to tbe city, tben being driven east on one of tbe streets of Hazard by Wm. Allen, one of its employees, collided with a Pontiac sedan, driven by Ray Dale, wbicb came from tbe south into tbe pathway of tbe truck from an intersecting street to Allen’s right. By tbe collision tbe truck was knocked or caused to carom to tbe north or to tbe left of its pathway, and to strike a Ford truck parked on the north side of! tbe street, driving it to tbe east and against Mrs. Combs, who was then crossing tbe street, so that she was caused to fall across tbe hood of tbe Ford truck, and from that position to fall beside it.

On March 24, 1931, Mrs. Combs sued tbe city, Dora Dale, the owner of the Pontiac sedan, and Ray Dale, tbe .driver thereof. In ber petition she alleges she was struck upon and about tbe arms, legs, bead, and body, and so frightened and shocked that her nervous system has become greatly and permanently injured and impaired, and that the said injuries to ber arms, legs, bead, and body are permanent injuries.

Upon the trial had February 3, 1932, Mrs. Combs testified about tbe collision, and about tbe Ford truck being driven against ber and knocking ber down; that some skin was knocked off of one of ber legs wbicb slie treated by putting some mercurocbrome upon it when she got home; and that is tbe last she or any one else says about any of tbe injuries mentioned in ber petition. She was tben asked about ber menstruation, and, over tbe objection of tbe defendant city, she was allowed to testify as follows:

“I began to chill and I began to menstruate, and I bad to go to bed, and stay in bed about two weeks, I couldn’t sleep any, I was so sore for about two weeks I couldn’t hardly get out of bed of a morning. I menstruated about two weeks and I got better and then in two weeks I began to menstruate again, and I have been that way ever since every two or three weeks. I can’t lift anything, don’t do my work like I used to.”

Defendant complained of the admission of this evidence, in its motion for a new trial, and relies upon that for reversal here. The evidence should not have been admitted under the petition as it was. See Louisville Ry. Co. v. Gaugh, 133 Ky. 467, 118 S. W. 276; Cincinnati, N. O. & T. P. Ry. Co. v. Bennette, 134 Ky. 19, 119 S. W. 181; Louisville & N. R. Co. v. Henry, 167 Ky. 151, 180 S. W. 74; Louisville & N. R. Co. v. Roney, 108 S. W. 343, 32 Ky. Law Rep. 1326.

A plaintiff should set out his cause of action ;n plain and concise language, so as to apprise the defendant of what he relies on and intends or expects to prove, and in his evidence should not be allowed to so materially depart therefrom as to take the defendant unawares.

Our attention is called to numerous other alleged errors, but they appear to be such as may not recur, and we reserve our judgment as to them.

Judgment reversed.