St. Paul Fire & Marine Insurance v. Kendle

176 S.W. 368, 165 Ky. 122, 1915 Ky. LEXIS 475

Opinion

Response to Petition for Rehearing by

Judge Nunn

Overruling.

The court adheres to the doctrine announced in the opinion, but observes that if the court, on another trial, .gives instructions 1 and 2, in connection with No. 3, as modified, the issues will not be made quite clear to the jury. In lieu of instructions Nos. 1, 2 and 3, the court on another trial will give to the jury the following instructions :

“(1) The court instructs the jury that they will find for the plaintiff in the sum of $5,000 with interest from the 18th day of January, 1912, unless they believe as in instruction No. 2.

“ (2) It was the duty of the plaintiff under the policy of insurance sued on to exercise ordinary care to employ two competent watchmen, one of whom should be kept on duty on board the boat at all times; and it was the duty of the watchman' on board the boat to exercise such care and skill to watch the boat as reasonably prudent and careful men usually exercise in watching similar premises during night hours. If the jury believe from the evidence that either the plaintiff or his watchman fáiled to perform his duties above set forth, then they' will find for the defendant.

“(3) Ordinary care is that degree of care which ordinarily prudent persons usually exercise under the same or similar circumstances.”

The petition for rehearing is overruled.