
    American Tobacco Company v. Troutman.
    (Decided May 4, 1917.)
    Appeal from Daviess Circuit Court.
    1. Damages — Injuries to the Person — Instructions.—In an action to recover damages for personal injuries caused by a falling elevator upon which plaintiff was riding, an instruction authorizing a recovery for the plaintiff in case a rule prohibiting employees from riding upon the elevator was unknown to the plaintiff, or if the rule was not enforced and employees had been in the habit of using it for a long time with the knowledge and consent of the servants of the defendant superior to the plaintiff, was not ■prejudicial to the defendant.
    2. Appeal and Error — Harmless Error. — In a suit to recover damages for personal injuries, it was error for plaintiff’s counsel to say in his argument to the jury, that if it should return a verdict for the plaintiff the defendant was able to appeal, and would appeal the case, and that the plaintiff was a poor man and unable to appeal; but the error was not prejudicial to the defendant.
    
      3. Damages — Inadequate and Excessive Damages.- — A recovery of $2,999.99 for a permanent injury to the plaintiff’s ankle, leg and foot is not excessive.
    4. Damages — Evidence—Competency.—In a suit to recover damages for personal injuries caused by- a falling elevator, which had upon it a sign, “Keep off the elevator,” it was competent for plaintiff to show that it was usual and customary for employees to ride on the elevator, with the knowledge and consent of the proprietor.
    E. B. ANDERSON and LOUIS I. IGLEHEART for appellant.
    BIRKHEAD & WILSON and CLEMENTS & CLEMENTS for appellee.
   Opinion of the Court by

Judge Miller

Affirming.

Tbe appellee, F. IT. Troutman, was employed by tbe appellant, tbe American Tobacco Company, to retie tobacco on tbe first floor of its factory, in Owensboro, where a large number of other men were engaged in like work. It was a part of Troutman’s duty to go from the first floor to tbe basement of tbe factory and.there load tbe tobacco on trucks, which were carried from tbe basement floor to tbe first floor of tbe factory by an elevator provided for that purpose. Tbe men handling tbe truck loaded with tobacco would ride with tbe truck to tbe first floor. When tbe tobacco bad thus been carried to tbe first floor, it would be carried by tbe workman to bis working place on tbe first floor. On tbe elevator there was a sign board containing this legend: “Keep Off tbe Elevator.”

On January 13, 1915 Troutman and bis co-laborer, John Bopp, went tc tbe basement and loaded about six-hundred pounds of tobacco upon a truck; and, having rolled tbe truck to tbe elevator, Troutman and Bopp got on tbe elevator with tbe truck of tobacco which was being conveyed to tbe first floor of tbe factory. Tbe elevator was- in charge of a man assigned to that duty; and, about tbe time they bad reached the first floor the wire cable which lifted tbe elevator broke and tbe elevator with its load fell to tbe basement floor, a distance of about ten feet. Troutman’s ankle, right leg and foot were severely and permanently injured. There was evidence tending to show that tbe wire cable was defective, and that tbe elevator was provided with emergency brakes, which were defective and failed to work on this occasion.

In this suit for damages, Troutman recovered a verdict and judgment for $2,999.99, and tbe defendant ap-

In onr opinion the record is unusually free of errors; certainly it contains no ruling that was prejudicial to the appellant.

On its motion for a new trial, the appellant specified four alleged errors: (1) Errors in the court’s instructions to the jury; (2) misconduct of appellee’s counsel in his closing argument; (3) the verdict is excessive; and (4) errors in the admission and rejection of evidence.

The first instruction followed the pleadings and predicated the plaintiff’s right to recover upon the existence of the facts therein relied upon; while the second instruction gave the measure of damages. Neither of these instructions is seriously objected to.

The third instruction directed the jury to find for the defendant in case they should believe from the evidence that there was a rule of the defendant, well recognizd and in force, and of which the plaintiff had notice, that employes were not permitted to ride upon the elevator, and that if he did ride upon the elevator in violation of the rule he was guilty of such contributory negligence as would prevent him from recovering.

The fourth instruction was the counterpart of the third, and directed a recovery for the plaintiff in case the rule prohibiting employes from riding upon the elevator was unknown to the plaintiff, or if the rule was not enforced and employes had been in the habit of using it for a long time, with the knowledge and consent of the servants ■ of the defendant superior to the plaintiff. It is insisted that this instruction was erroneous, in- that it required the breach of the rule to have continued for a long time. JBut, certainly this was not prejudicial to the defendant, although it might have been prejudicial to the plaintiff.

The fifth instruction properly defined contributory negligence; and instructions A, C, and D were given upon the motion of the defendant. Instruction B was the counterpart of instruction 3 upon contributory negligence, and directed the jury to find for the defendant in case the plaintiff’s own negligence caused the injury.-

The instructions fairly stated the law - of the case, and we fail to see where the appellant was prejudiced, in any respect.

In.his closing argument to the.jury plaintiff’s attorney stated, “the plaintiff under the,evidence is entitled to-a verdict for $2,999.99; if you render a verdict for $1,000.00, the defendant is able to appeal and will- appeal tKe ease; and so we ask you to render a verdict for tbe full amount sued for because you will be justified under the evidence in doing tbis. Tbe plaintiff is a poor man and is unable to appeal tbis case and is entitled under tbe evidence to a veidict for tbe full amount sued for, for tbe injuries which be sustained.”

Tbis language is substantially tbe same as tbat complained of in L. H. & St. L. R. R. Co. v. Morgan, 110 Ky, 741, where tbe court said:

“Tbe remarks of counsel, supra, were improper, but for tbat alone we would not reverse tbe case. The other remarks objected to as shown by tbe bill of exceptions are not subject to criticism. Tbe court cannot afford to take notice of all remarks of counsel tbat are not strictly within tbe record. There is a latitude allowed in oral argument, but it should not extend so far as was done in tbe quotation.”

There was no prejudicial error in tbis respect.

As tbe proof clearly shows that tbe injury to Trout-man’s ankle is permanent, it cannot be said tbat a verdict for $2,999.99 is excessive. L. & N. R. R. Co. v. Mitchell, 87 Ky. 327; City of Louisville v. Arrowsmith, 145 Ky. 498; and cases collected in Ann. Cas. 1913A 1369.

It is, however, contended tbat tbe court erred in admitting, over tbe defendant’s objection, evidence showing that some of tbe employes in tbe room where appellee was working bad, at times, ridden with tobacco on tbe elevator; and also in admitting proof tbat it was usual and customary for employes to ride on tbe elevator while moving tobacco from tbe basement to tbe retying room. And, it is contended tbat tbis evidence, if proper, did not tend to establish tbe fact tbat appellant furnished or provided tbe appellee with tbe elevator. We see no merit in either of these contentions, Tbe use of tbe elevator for tbe purpose of carrying tobacco was tbe regular way provided by tbe company for tbat purpose, and proof of the fact tbat tbe employes went with tbe tobacco upon tbe elevator with tbe consent of tbe company, instead of going by a stairway, was competent to show that tbe rule requiring persons to keep off the elevator, if it existed and applied to employes, was really no rule at all. And, it must be admitted tbat tbis proof showed tbat appellant furnished tbe elevator for its employes.

■ Perceiving no prejudicial error in tbe record, the judgment is affirmed.  