Rose v. Wigginton

269 S.W. 761, 207 Ky. 627, 1925 Ky. LEXIS 150

• Court: Court of Appeals of Kentucky
• Decided: March 3, 1925
• Status: Published

Opinion

Opinion of the Court by

Commissioner Hobson- — ••

Affirming.

Alfort H. Wigginton. was a Paular and mover of furniture in Louisville, Kentucky. He operated a motor truck in Pis business. On December 4,1922, a little after 6:00 p. m. Pe Pad loaded Pis truck in front of a house in St. CatPerine street and went to the front of the car to get Pis coat and put it on while another man was cranking the truck preparatory -to starting. Just as Pe was doing this D. B. G-. Rose, operating an electric motor car, came up St. CatPerine street behind Pirn and ran into him, mashing Pirn against Pis truck, breaking both Pis legs and otherwise painfully injuring Pirn. He brought this suit against Rose to recover for Pis injury. On the trial Pe recovered a judgment for $5,250.00. Rose appeals.

Only two grounds for reversal are relied on: 1. TPe defendant’s demurrer to the plaintiff’s petition should Pave been sustained; 2, the verdict for $5,250.00 is excessive.

1. TPe only defect in the petition assigned is that it did not state facts sufficient to warrant a recovery for time lost. But if the allegations of the petition were defective as to time lost, this would not be ground for a general demurrer to the petition. It would only be ground for a motion to strike out this part of the petition. And as a matter of fact, before the trial of the case the plaintiff amended Pis petition and alleged specifically how much time Pe Pad lost and the value of the lost time. This made the petition good and the rights of the defendant were in nowise prejudiced in this matter.

2. TPe proof shows that the plaintiff’s actual losses were in round numbers as follows: Damages to Pis truck, $400.00; time lost, $1,200.00; physician’s bill and other expenses, $325.00. This would only leave $3,325.00 for Pis personal suffering and the impairment of Pis power to earn money. He suffered intensely for months after the injury and was still suffering at the time of the trial. The proof showed that the left leg was good at the time of the trial, but the. weight of the evidence shows that both bones of the right leg were broken between the knee and the ankle; that the large bone was not only broken but crushed and the smaller bone was sticking in the flesh. A successful operation was performed and as good results were obtained as could be reasonably expected, but necessarily such an injury would cause intense suffering. In addition to this the weight of the evidence is to the effect that the right leg will only be three-fourths good hereafter, that is, that the plaintiff has sustained a one-fourth permanent disability in his right leg. This is a serious matter to a man whose occupation is hauling and moving furniture, for necessarily he has much lifting to do and needs in such a business two good legs. Under all the evidence we cannot say that the verdict of the jury is excessive.

Judgment affirmed.