
    Louisville & Nashville R. Co. v. John H. Wilson.
    [Abstract Kentucky Law Reporter, Vol. 3-469.]
    Answer Before Demurrer.
    When a defendant answers a petition and the answer is not withdrawn, it is not err.or for the court to overrule the demurrer filed after the answer, for the answer cured the alleged defect in the petition.
    Proof of Negligence.
    When plaintiff’s proof established the defendant’s negligence and the defendant offered no proof, it is proper for the court to instruct the jury that negligence had been proven and to so find.
    APPEAL FROM ROCKCASTLE CIRCUIT COURT.
    December 3, 1881.
    
      
      S. M. Burdett, Lyttleton Cooke, for appellant.
    
   Opinion by

Judge Hargis:

The evidence for appellee established negligence upon the appellant company, which failed to introduce any testimony. It admitted the contract of shipment, and while negligence is denied the failure of delivery is virtually confessed. In view of these facts the court properly instructed the jury that negligence had been proven, and to so find.

As the evidence conduced strongly to establish greater damages than were given by the jury in their verdict, even adjudging interest to it, the appellant was not prejudiced by the instruction to add interest to the sum of the damages and include both in the verdict.

A,s appellant failed to withdraw its answer before filing or causing the demurrer to be heard, the court did not err in overruling it because the answer cured the alleged defect in the petition.

Judgment affirmed.  