Mealy v. Ewen

7 S.W.2d 823, 225 Ky. 117, 1928 Ky. LEXIS 706

• Court: Court of Appeals of Kentucky (pre-1976)
• Decided: June 15, 1928
• Status: Published

Opinion

'Opinion, op the Court by

Judge Dietzman

Affirming.

This is the second appeal of this case. The opinion on the former appeal is reported in 221 Ky. 114, 298 S. "W. 182, where a statement of the facts involved may be found. On the return of the case to the lower court, the appellee elected to proceed against the present appellant alone, and again recovered a verdict for $25,000. Prom the judgment entered on that verdict, this appeal is prosecuted.

But two grounds are urged by the appellant for reversal. The first is that she was entitled to a peremptory instruction because the appellee was, as a matter of law, guilty of contributory negligence; and, secondly, that the verdict is grossly excessive.

As to the first ground, she is precluded by the opinion in the former appeal. The evidence on the point involved was not materially different on the second trial from that on the first trial. Indeed, if anything, it was stronger for the appellee. We held on the former appeal that the appellant was not entitled to a peremptory instruction on the ground now and then urged, and, under familiar law, that opinion is the law of the case.

As to the second ground, the evidence shows that the appellee’s spinal column was broken and crushed in the accident out of which this suit arose, and that, as a result, the spinal cord was so injured that she is paralyzed almost entirely from her waist down. She has no feeling whatever in her legs from the knees down. Pins and other sharp instruments can be stuck into them without any reflex. She has no movement of the left leg from the thigh down, and but little movement of the right about the thigh. One of the legs and feet is atrophied. She has no control over her organs of elimination. Appellee was about 28 years old at the time of the accident, and earning about $5,000 a year conducting a beauty parlor at Middlesboro. Her earning power has been entirely destroyed, and the evidence satisfactorily shows that her injuries are permanent. The evidence further shows great suffering on her part during the many months she was confined to the hospital and indeed down to the trial of this action. She cannot walk without assistance, and her digestive tract requires the constant use'of'cathartics. Under the facts, we cannot say that the verdict is excessive within the rule invoked for a reversal on such grounds. See L. & N. R. Co. v. Melton, 105 S. W. 366, 32 Ky. Law Rep. 51, where a verdict for $22,000 for injuries substántially similar to those'here present was uphled. Also L. & N. R. Co. v. Mitchell, 173 Ky. 622, 191 S. W. 465, where a verdict for.$20,000 for injuries no more serious than those found here was sustained.

No error appearing prejudicial to the substantial rights of the appellant, the judgment is affirmed.