Case 103 — Action by Bernard Pelzer against South Covington *&*Cin. Street Ry. Co. to Recover Damages for Personal Injuries.

March 13, 1897.

#### South Covington & Cincinnati Street Ry. Co. v. Pelzer.

APPEAL FROM CAMPBELL CIRCUIT COURT.

Judgment for Plaintiff and Defendant Appeals.

Affirmed.

Evidence — 'Collision With Wtagon — Negligence—.Contributory Negligence — 'Instructions—Excessive Damages.

Held: 1. In an action for injuries caused by thei collisiioin of a wagon, with a street car, defendant’s witnesses testified to a mark or indentation on the street car, No. 36, where the wheel of plaintiff’s wagon struck the oar in the collision. Held, that evidence of witnesses who had examined a car of defendant’s, raf tha samel number, .and that no such indentation as that testified to was on it, was admissible in rebuttal, though the examination was made a year after the accident.

2. In an action for injuries received in, a ¡collision with a street ■oar,-an instruct]cn that “if the street oar ran into plaintiff’s Wagon as it was being driven off the track the jury will find for plaintiff, but i.f the collision resulted from the wagota. running towards the street .ear while the wagon was completely off the track and thereby came in contact with the car, the jury-will find for the defendant,” was proper.

3. There can be no contributory negligence cn the part of a plaintiff except where there has been negligence ion the ipart of the defendant. Contributory negligence exists only when the negligence of both parties has comhined and concuur.ed in producing Lhe injury. There being nothing in the testimony, in this case, tending to establish such ,a condition, an instruction .on ■contributory negligence was properly refused.

4. The verdict of the jury awarding $2,000 damages for the breaking of appellee’s leg, being supported by ample evidence, was not excessive.

SIMRALL & GADVIN, attorneys for appellant.

Tho plaintiff, .an infant sixteen years of age^ who sues by his father and next friend, alleges that while driving a wagon *884across *tfoei*central bridge from Newport, Kentucky, to. Cincinnati, Ohio, his wagon was, run, into by a car of .deifenldamjt By the negligent, careless and reckless manner in which it was operated by defendant’s servant in charge thereof, by wmch plaintiff was thrown to the floor of thei bridge and bis leg broken.

•The defendant not.only denied all negligence and carelessness, but -denied that its ear ran into/ the (wagon, and alleged' that plaintiff’s injury was caused -wholly by bis olwn negligence in driving bis horse and wagon in the regular driveway on said bridge built for and set apart by' tbe corporation owning and. controlling it for the use of wagons, and while' defendant’s car was on the track set apart for the use of its cars o-n the bridge, there being ample room for its passageiwitbout danger of collision, the plaintiff negligently, carelessly and recklessly pulled his horse towards said car and ran the wagon .against the side of the car' and thereby caused the ho-rse to. r!un away and break tbe wagon and throw plaintiff on the bridge and injure him.

The jury returned a verdict for plaintiff for $2,000 damages, from which this appeal is prosecuted.

We claim the court committed numerous errors on the trial, •the most glaring of which we will discuss.

1. The court erred in permitting two of plaintiff’s counsel to testify in rebuttal about their examination and inspection, of a car more than a year after the accident.

2. The court erred in the instructions given to the jury, and in refusing to give instructions asked for by appellant.

3. That the judgment is against the evidence and is excessive.

1. We submit that the fact that these expert lawyers examined a car, No. 35, which was the number of tbe car in the collision, fifteen months after tbe accident, that was running on defendant’s road, was not competent evidence to go to the jury, tbe presumption being that the 'mark or indentation made) •thereon by tbd 'wagon bad long since been removed.

2. Instructions. We submit that the! defendant was entitled to an instruction on contributory nefeligence, especially when •the instruction is so- framed as to say to the jury that the •plaintiff was guilty of contributory negligence of such a character as that the injuries would not have occurred without it, in which case their verdict must be for defendant, which instruction was refused.

The instruction given by the court . does not involve the finding (of any negligence on tbe -pant otf defendant, nor does it consider any question of contributory negligence on the ,panti of plaintiff.

The error of the learned judge arose, it seems to us, from *885his desire and attempt, in instructing juries, to put the •whole case in a nut shell, but ¡the trouble isl that his nut shells are too small.

HORACE W. ROOT and R. C. TAYLOR, fob appellee.

1. We submit that a reading oí the record! shows .thait the .verdict oí the jury is supported, by ¡the evidence and that appellant’s theory of the way the accident occurred is not only improbable, but impossible.

•2. Excessive Verdict. Considering all the facts proven and that the jury -saw appellee’s broken and enlarged ankle joint, and -are the best judges as to what sum of money would compensate him for his great physical and mental suffering, his disfigurement, his decreased capacity for .labor, .and that the injury is a permanent one, the verdict for $2,000 is not excessive.

,3. Instructions-. It will appear that a clear cu-t issue was made by th-e pleadings as to whether the ho-rs-e -and wagon, plaintiff was driving, was at the time of the accident inside -of the ear track on which the car was running, -or was outside and a safe distance therefrom. The instruction given by the court) ■submitted this issue in plain language to the jury and no other) ■instructions w-ere necessary.

4. Identification of -Car. The evidence introduced by plaintiff as to the absence of marks on the car examined, was- competent in rebuttal, because if it had been repaired or the marks obliterated the appellant could easily have .shown it.

5. Contributory negligence must be made out-by showing not only that plaintiff was guilty of negligencei, but that it cooperated with defendant’s negligence to produce the injury.

LIST OF CASES -CITED.

Duncan v. Finnyhorn, Sneed, 262; Taylor v. Giger, Hardin, 595; Worford v. Isbel, 1 Bibb, 247; Worth v. Cates, 2 Bibb, 591; Bacon v. Brown, 4 .Bibb, 92; Craig v. Elliott, 4 Bibb, 272; Kountz v. Brown, 16 B. M., 577; D. L. & N. T. R. Co. v. Stewart, 2 ¡Met., 119; M. *&*L. R. R. Co. v. Herrick, 13 Bush, 122; S'hs-rley v. Billings, 8 Bush, 147; L. & N. R. «R. Co. v. Brooks, 83 Ky., 129; C. & N. R. R. Qo. v. Harlan, 12 Ky. Law Rep., 506; L. B. -Co. v. Nolan, 13 Ky. Law Rep., 493; L. *&*N. R. R. Co. v. Moore, 83 Ky. Law Rep., 675; Sedgwick ion Damages, 6th ed., 762 to 764, sec. 602; 21 Am. & Eng. Ency. of Law, note 5, p. 107; McLeod v. Ginther, 80 Ky., 399; Hooker v. Chicago R. R. Co., 78 Wis., 542; Sherley v. Billings, 8 Bush, 147; Am. *&*Eng. R. R. Cas., 498; Hanover v. Coyle, 55 Pa. St., 396; Irishman v. City R. Co., 24 Atl. Rep., 596; Central P. R. Co. v. Chattarson, 14 *886Ky. Law Rep., 663; Louisville & P. L. Co. v. Murphy, 9 Bush, •533; Calkins v. Bayer, 44 Baab, 424; Clarke v. Foiote, 8 Johns., 421; Dolfinger *&*Co. v. Fishbaek, 12 Bush, 478; Clarka v. Baker, 7 J. J. Mar., 197; Central Passenger Ry. Co. v. Chatter-son, 17 R.« 5.

This case was originally market not to be reported, and was recently ordered to be reported. — Reporter.

Opinion op the court by

JUDGE BURNAM

Affirming.

The plaintiff below and the appellee here filed his petition in the Campbell circuit court on the 10th of March, 1894, alleging that on -the 14th day of March, 1893, while driving a horse attached to a wagon over the central railway bridge, from the city of Newport to Cincinnati, a car belonging to defendant, while running over said bridge in the same direction, was operated by the employes of said company in such a negligent and reckless manner that said car ran against the wagon driven by the plaintiff, with great violence, forcing the wagon and horse to one side, breaking the wagon and throwing the plaintiff on the floor of the bridge so as to break his leg and to inflict on him very serious injuries, from which he was confined for at least five months thereafter.

The defendant, in its answer, denied all negligence and carelessness, and, in fact, all the affirmative allegations of plaintiff’s petition, and alleged in a second paragraph that if the plaintiff received all the injuries complained of by him, same were caused and received wholly, and through, and by reason of his own negligence and carelessness,. in that plaintiff was driving a horse and wagon in the regular driveway on the bridge built and set apart by the corporation for the use of wagons and teams, and that when the car of defendant was on the track set apart for the use of cars, and when said car was almost past said horse and' *887wagon then being driven by plaintiff, and there being at the time ample room for its passage without collision, plaintiff carelessly and negligently and recklessly pulled his' horse toward the car, and ran the wagon against the side of the car, and thereby caused the horse to break loose from the wagon, and that plaintiff was pulled from the wagon by the horse and thrown upon the floor of the bridge, by which he received the injuries complained of.

There was a reply denying the allegations of the second paragraph. The plaintiff and his witnesses proved the facts of the collision substantially as charged in the petition, whilst the defendant, on the other hand, by the conductor and motorman proved the collision to have occurred substantially as charged in the answer. The jury returned a verdict of $2,000 in favor of plaintiff, upon which judgment was entered, and this appeal is prosecuted to reverse that judgment. A number of errors are assigned by appellant. The first is, that the court erred in permitting the two attorneys of plaintiff to testify in rebuttal about their examination and inspection of a car belonging to appellant, more than a year after the accident; second, error in refusing instructions asked by appellant; third, errors in instructions given by the court; fourth, that the judgment was against the law and evidence.

It had been developed in the evidence of the employes of defendant that the car which was involved in the collision- was a closed winter car of large size, No. 35, and the motorman and conductor testified that right in the center of the car, over the figures 35 — which was the number of the car — there was a mark or indentation showing where the wheel of the wagon driven by appellee had struck. This fact was testified to by a number of witnesses for appellant. The testimony complained of was to the effect that *888the witnesses had examined a car, numbered 35, of the same general description as that which was proven to have collided with the wagon of plaintiff, and marked in the same way and running over the same lines, and that no such indentation as testified to by the witnesses for appellant were on the sides of the car. These witnesses, it is true, did not positively identify the car as the identical one which was being operated at the date of the collision, but it seems to us that this is circumstantial evidence admissible to go to the jury as rebutting testimony. Certainly it was very easy for the company, with the motorman and conductor both testifying at the trial, to have shown that it was not the same car, or that the indentation had been removed, if such had been the fact.

2. As to the instructions given by the court: By instruction No. 1 the jury is told that if they believe from the evidence that the collision between the wagon driven by plaintiff and the defendant’s car occurred by the said car running into the wagon as it was being driven off the track on which the car was running, they will find for the plaintiff. And by the second paragraph of the instruction they were told that if they find from the evidence that the said wagon was completely off the tracks, and the collision resulted from the wagon running towards the car and coming-in contact with it, they will find for defendant. It seems to us that this instruction gives, in the language of the learned counsel for appellant, in a nutshell, the whole law of the case.

The plaintiff and defendant have two distinct and independent theories, which are contradictory in themselves, as to the manner in which the accident occurred, and each supports its contention by evidence which is as conflicting- as the theories on which they proceed. If appellee is right, *889that the collision occurred by the car running into the wagon as it was being driven off the track, they are clearly liable, because the testimony of appellant clearly shows that they were in plain view of the wagon driven by the appellee,' and that he saw the boy sitting in the wagon, and that he rang the gong once or twice when the car was twenty-five or thirty feet back of the wagon. He says: “I never noticed him looking round; I caught him sudden.” It is evident that if the car struck the wagon as it was being-driven off the track of the railway, it was a case of pure negligence on the part of appellant, which authorized the instruction to find for plaintiff. If, on the other hand, the wagon was not on the railway track at all, but was on the wagon road between the railway tracks on the bridge, ánd the collision occurred, as proven by the testimony of the defendant, by driving the wagon against the car when they were both traveling in the same direction, it was wholly the fault of plaintiff, and the agents of the defendant who were operating the said car could have done nothing to have avoided the accident, and the defendant in that state of case was entitled to an instruction to find for it.

The instruction, in apt and pointed language, submits to the jury for their determination the question of fact upon which the right of recovery turned. We do not think that the law of contributory negligence applies in this case, “as there can be no contributory negligence on the part of the plaintiff except where there has been negligence on the part of the defendant. Contributory negligence exists only when the negligence of both parties has combined and concurred in producing the injury.” There is nothing in the testimony either of plaintiff or defendant tending to establish this condition. The instructions asked for by the defendant, and overruled by the court, are all based upon this idea of con-*890tributary negligence, and, while most of them are right as abstract propositions of law, they were properly overruled in this case, as there was no evidence on which to base them. As to the contention of the appellant, that the judgment was against the evidence, it has been frequently decided by this court that a verdict of a properly instructed jury will not be set aside upon a finding of fact, unless it is flagrantly against the weight of. evidence. If the testimony of appellee is true, and the jury seem to have so found, we think that the verdict was amply supported by the proof, and that damage given was not excessive. Wherefore the judgment is affirmed.

Petition for rehearing by appellant overruled.