Case 110 — Action by Albebt Babies against the Louisville Electric Light Company bob Damages bob Personal Injuries.

May 3, 1904.

#### Baries v. Louisville Electric Light Co.

APPEAL PROM JEFFERSON CIRCUIT COURT, COMMON PLEAS DIVISION, NO. 2 — THOS. R. GORDON, judge.

Judgment for Defendant and Plaintiff Appeals.

Reversed.

Personal Injury — Smallness of Verdict — Failure to Plead Special Damage — Verdict Defendant — Legal Effect — Electric Light Wire — Negligent Insulation — Painting of Building— Notice to Company — Custom—Admissibility of Evidence— Prejudicial Error.

1. Under Code Civ. Prac., see. 341, providing that a new trial shall not he granted on account of the smallness of the damage in an action for an injury to the person or reputation, nor in any •other action in which the damages equal the actual pecuniary injury sustained, a verdict and judgment for one cent for personal injuries resulting in loss of time worth about $800 may be reversed.

i2. Plaintiff in a personal injury action alleged that he had been and! was unable to do any kind of work. The evidence showed that the time lost to him in consequence of his injury would equal more than $S00. The jury gave him a verdict of one cent.. Held, that, as he had not pleaded special damages, he was not entitled to a reversal because of the smallness of the damages.

3. A verdict of one cent, for personal injury consisting of a withered, arm, from which plaintiff appeals, will be treated by the court of appeals, in considering the errors alleged, as one for appellee.

4 An electric light company, whose failure to properly insulate its wire on a building results in injury to a house painter at work thereon, is not relieved from the consequences of its negligence because the painter’s employer knew that the company desired. *831to cut the wire when, that portion of the building was tso be painted, or because there was a custom that contractors sihould notify the company when working on houses to which its wires were attached so they could be cut, though the company received no notice in this instance.

*5.*Where an electric light company had actual notice that house painters were at work on a building to which its wires were attached, evidence of a custom to give it notice of the fact so tlhe wires could be cut is inadmissible in an action by a painter for injury from a defectively insulated wire.

(6. The improper admission of evidence in a house painter’s action against an electric light company for injuries from a defectively insulated wire on the building he was! painting, that a custom existed to notify the company that painters were at work so its wires could be cut, is ground for reversal.

7. Where an employe of an electric company, whose business it was to look after removing the electric current from houses that were being painted, knew that painters were at work on a certain house, his knowledge was notice of such fact to the corporation.

BENNETT H. YOUNG, attokney for appellant,

,1. The appellant was permanently injured by contact with a live wire of appellee. In addition to damages, he sued for loss of time, proving fifty-four weeks at $15 per week, or $810.00. The jury found for the plaintiff and awarded him one cent.

The case does not fall within that part of section 341 of the 'Civil ‘Code, which provides that mere smallness of damages for injury to .person or reputation shall not be the ground for a new trial, but comes within the second clause which declares that a mew trial shall be allowed when the award does not equal ■“pecuniary damages sustained.” Henderson v. Louisville Railway Company, 22 Law Rep., 776.

2. The court erred in admitting evidence of notice to the employer and fellow workmen of appellant of danger from said wires, and that appellee desired to cut off same before work was •done around them.

There is no plea of fellow servant’s negligence as a defense.

3. The only question that should have been submitted to the .jury, was whether or not appellant was guilty of contributory negligence as the| defendant’s evidence shows that the insulation was not perfect. McLaughlin v. Louisville Electric Light Co., 100 Ky., 173.

*832O’NEAL *&*O’NEAL, attobneys for appellee. R. L. GREENE, oi" •counsel.

From the evidence the following propositions are shown to. he true:

1. Appellant was an old experienced painter.

2. He knew there existed in this city a uniform, well understood custom, hy which the painters of houses gave notice when, they wished the current cut off from the electric wires, and the company relied on this, and could not know in any other way when it should he cut off.

3. The wire was hung where the public could not come in contact with it, and it was protected hy the best known insulation..

4. The accident was wholly caused hy the careless act of appellant who allowed the metal hook of his ladder to cut and wear into the wire, and cause the current to burn the wire in two.

5. The instructions were more favorable to the appellant than be was entitled to under the evidence.

6. There is no issue as to loss of time, or as to wages lost, or other special damage.

Opinion of the court by

JUDGE PAYNTER

Reversing.

The arm of appellant has withered and become useless by coming in contact with a live wire of appellee. It occurred while painting on a. house to which the wire was attached. Appellant claims that he received the injury by reason of appellee’s negligence in not having the wire properly insulated. This was the question of fact at issue on the trial of the case. The jury returned a verdict for the appellants and fixed his damages at one cent. He asks a reversal on the grounds (1) that the verdict fixing damages is flagrantly against the weight of the evidence; (2) that the court erred to his prejudice in the admission of evidence.

It is the contention of appellee that under section 311, Code Civ. Prac., the judgment can not be reversed because of the smallness of damages in an action for an injury to the person. The evidence shows that he was earning and could earn at his trade as a painter $15 a week, and that the *833time lost in consequence of bis injury would equal a sum greater than $800. Tbe loss of time resulting from a personal injury is a pecuniary loss in contemplation of section 341, and it is a ground for reversal if tbe verdict is for tbe plaintiff, and it does not award damages to cover sucb pecuniary loss. Taylor v. Howser, 12 Busb, 468; Ray v. Jeffries, 86 Ky., 367, 9 R., 602, 5 S. W., 867; Stroh v. South Covington & Cincinnati Street Ry. Co. (opinion delivered March 23, 1904) 25 R., 1868, 78 S. W., 1120. This-court has repeatedly held that special damages must be pleaded. It was not sufficiently done in this case. It is averred in tbe petition that since tbe plaintiff received tbe injury be “has been and is unable to do any bind of work.” Tbe averment is not sufficient; hence tbe appellant is not entitled to a reversal because of tbe smallness of damages» Ray v. Jeffries; Stroh v. South Covington & Cincinnati Street Ry. Co., *supra;*Jesse v. Schuck, 12 S. W., 304, 11 Ky. Law Rep., 463. While it is stated by tbe jury that the verdict is for tbe, plaintiff, it was, in effect, onei for tbe defendant. It can not be believed that any jury would so lack in judgment and proper appreciation of tbe serious loss resulting from a withered arm as to believe that one cent would compensate tbe injured party. In determining whether or not appellant was prejudiced by tbe admission of improper evidence, we will consider its effect tbe same as if tbe verdict bad been for tbe appellee. At the time of tbe injury appellant was in tbe employ of McKelvey, who bad tbe contract for painting tbe bouse. It is contended that tbe court erred in admitting evidence that McKelvey and some of bis employes bad notice that appellee desired to cut tbe wire, when tbe painting should progress far enough for tbe men to work on that portion of tbe building where tbe *834wires were situated. Such evidence would be incompetent, as it would be allowing appellee to show the negligence of appellant’s employer to exonerate it from a liability for negligence which was the proximate cause of the injury. The neglect of McKelvey was not a contributory act imputable to the appellant. If appellee was negligent in failing to properly insulate its wire at the place where appellant had the right to be in the discharge of his duties, it certainly could not be relieved of the consequence of its negligence because some one other than the appellant might have by performing-a duty prevented the injury. While there is no evidence that such notice was. given to McKelvey, evidence was admitted to show a general custom prevailed which required contractors to notify appellee they were working on a house to which its wires were attached, and when this was done it always cut the wires. This evidence was intended to show that there was a duty upon appellant’s employer or himself to give the appellee notice that work was •being done on the house. If that custom required the employer or his foreman to give such notice, their failure to do so could not release the appellee from the consequences of its negligence in failing to properly insulate the wires. If such evidence is admissible under any circumstances, it was not in this case, because the appellee introduced evidence showing it had notice the day before the accident that the painters were at work on the house where the accident happened, and Mr. Kinkead, one of its electricians, testified that appellee cut the wires on houses when it had such information. It is the purpose of the notice that men are at work where appellee has its wires to give it an opportunity to cut them. If it had the notice, then the evidence of the general custom (if evidence of it is admissible in any case) was not admissible in this case, for, if it had been followed, *835the appellee would have been told a fact of which it was already apprised. Besides, the evidence, taken in its entirety, did not show that there was any general custom which could impose a duty upon an ordinary employe of a contractor to give such notice. The admission of the evidence as to the general custom was prejudicial to the rights of the appellant. In giving instructions to the jury the court seems to have followed McLaughlin v. Louisville Electric Light Co., 100 Ky., 17318 R., 693, 37 S. W., 851, 34 L. R. A., 812, and other cases to the same effect.

The judgment is reversed, with directions for proceedings consistent with this opinion.

Response to petition for rehearing by

Judge Paynter.

Counsel seems to think the court was in error in stating that appellee introduced evidence showing that it had notice the day before the accident that the painters were at work on the house where it happened. This is substantially correct, because John Showaiter, an employe of appellee. whose business it was to look after the matter of having the electric current taken from houses that were being painted, testified that the day before the accident he knew the painters were at work on the house. His knowledge was the knowledge of the company, and the knowledge it had was equivalent to notice.

The court does not want to be understood as holding that it is not competent to prove the general custom which existed in Louisville, which required painters, or their foreman, to give the electric light company notice that they are ' engaged in painting a house to which its wires are attached. The court simply held that in view of the fact that it had notice that the painters were at work on the house, and the further fact that Mr. Kinkead, the company’s electrician, testified that it was a rule of the company to take the *836■electric current from a bouse when, it bad notice that tbe painters were at work on it, tbe proof of the custom was rendered incompetent.