cars or trains to said crossing to persons | get on the track, and may run them at any upon or about to go upon said crossing, and speed it pleases. [7] We are unable to agree with counsel in this conception of the duty that a railroad company owes at a crossing like the one in question. At some crossings one watchman who fully performed his duty might be legally sufficient, and the company might be relieved from the performance of the other duties it usually owes to the public at crossings. At other crossings a compliance with the statutory duties of ringing the bell and blowing the whistle, and in addition keeping a lookout, and running at a reasonable speed, might fulfill its duty without a watchman. Again at other crossings its duty might require it to have a watchman, to give warning of the movement of trains, and also to have a person stationed on cars being backed or pushed, and at yet other crossings gates might be necessary. No exact measure of duty can be laid down that would be applicable to all crossings. At each public crossing the railroad company must use that degree of care that is reasonably sufficient for the purpose of giving notice and warning of the movement of trains and cars to the public having the right to use the crossing, and this degree of care depends on the situation and surroundings of the crossing, the number of trains using it, and the number of the public who use it. Cincinnati, New Orleans & Texas Pacific Ry. Co. v. Champ, 104 S. W. 988, 31 Ky. Law Rep. 1054; Kentucky Central R. R. Co. v. Smith, 93 Ky. 449, 20 S. W. 392, 14 Ky. Law Rep. 455, 18 L. R. A. 63; Central Passenger Ry. Co. v. Kuhn, 86 Ky. 578, 6 S. W. 441, 9 Ky. Law Rep. 725, 9 Am. St. Rep. 309; L. & N. R. R. Co. v. Popp, 96 Ky. 99, 27 S. W. 992, 16 Ky. Law Rep. 369. in backing cars across said crossing it was the duty of the defendant to have some one stationed upon the cars in such a position that he could discover the presence of persons upon or about to go upon the crossing, for the purpose of giving warning of the approach of the cars, and for the purpose of avoiding injury to persons in peril or apparent peril of being struck by the cars, if in the management of the cars after the discovery of their peril or apparent peril those in control of the movement of the cars could, by all reasonable means at their command, stop the car and avoid injury to them. If the crossing was an unusually dangerous one, it was the duty of the defendant to provide a watchman or watchmen reason ably sufficient to give reasonable and timely warning to the public using said crossing of the approach of trains." The objections urged to this instruction are that it imposed upon the railroad company the duty (1) of giving warning of the approach of the train by ringing the bell or blowing the whistle; (2) of having some one stationed on the car which ran over the appellee; (3) of having one or more watchmen at the crossing, if this was necessary to reasonably protect it. In support of these objections the argument is made by counsel "that, at a crossing where a flagman is maintained, the duty imposed upon him supersedes the other specified duties as to such crossings where no flagman is maintained. In other words, having a flagman at the crossing is the most extraordinary precaution that a railroad company can take. Where this is done, and where the flagman performs the duties imposed upon him, * the railroad company, through said flagman, has performed its full duty in the way of affording both warning and protection to the high-correctly advised the jury that it was the way traveler on the crossing." The effect of this argument, as we understand it, is that, when a railroad company has a watchman stationed at a crossing, the presence of this watchman, if he performs his duty, relieves it from the duty of ringing the bell, sounding the whistle, or having a man on a car that is being pushed in front of an engine or backed by an engine over the crossing, and from operating its train over the crossing at a reasonable rate of speed, and from keeping a lookout for the presence of travelers. Or, in other words, when a railroad company has a watchman stationed at a crossing, however dangerous the crossing may be, or however great the number of people who may use it, it may run its trains without notice or warning of any kind other than such as the watchman may be able to give, and may back or push cars without any person on them to control their move Having this view of the duty a railroad owes at a public crossing, we think the court duty of the railroad company to exercise such care as was reasonably sufficient to protect the crossing, although this duty might require it to employ the means pointed out in the instruction. Under the undisputed facts, the crossing was an exceptionally dangerous one, and it cannot be said, as a matter of law, that having a watchman alone, or ringing the bell or blowing the whistle alone, or having a man stationed on the moving cars alone, would be an adequate performance of its duty, or that all of these precautions were not necessary to afford reasonable protection to the public. [8] It is further insisted that it was error to instruct the jury that they might, in addition to compensatory, award punitive, damages. In a number of cases we have ruled that in personal injury cases punitive damages are only allowable unless the act that caused the injury complained of was inten ROSE et al. v. MONARCH. (Court of Appeals of Kentucky. Dec. 3, 1912.) CONTINUANCE (8 7*)-MOTIONS-DISCRETION. In ruling on motions for continuance, the trial court is exercising a discretionary power. [Ed. Note.-For other cases, see Continuance, Cent. Dig. §§ 17, 18; Dec. Dig. § 7.*] On petition for rehearing. was the result of a reckless or wanton disre- | 93 Ky. 449, 20 S. W. 392, 14 Ky. Law Rep. gard of the rights or safety of others on the 455, 18 L. R. A. 63; C., N. O. & T. P. Ry. Co. part of the wrongdoer. Louisville & Nash- v. Ackerman, 148 Ky. 435, 146 S. W. 1113. ville R. R. Co. v. Wilkins, 143 Ky. 572, 136 The judgment is affirmed. S. W. 1023; Continental Coal Corporation v. Cole, 146 Ky. 821, 143 S. W. 386; Straight Creek Coal Co. v. Huddleston, 147 Ky. 94, 143 S. W. 775; C., N. O. & T. P. Ry. Co. v. Ackerman, 148 Ky. 435, 146 S. W. 1113. This is the degree or quality of conduct that constitutes, in the meaning of the law, gross negligence, entitling the injured party to more than compensatory damages, and, whenever the trial court is of the opinion that the pleadings and evidence show that the wrong. doer has been guilty of the character of conduct above described, he should instruct the jury on the subject of punitive damages. With this definition of what constitutes gross negligence entitling the injured party to punitive damages, it only remains to be seen whether or not the evidence justified the instruction on this subject. It is true the railroad company had a watchman at this crossing, but this is the only care it exercised to protect the public, having the right to use it, from injury by moving trains, and it is apparent from the evidence that the presence of this watchman was entirely inadequate to afford reason. ably sufficient protection to the public at the time appellee was injured. It is probable that at sometimes during the day he could adequately guard the crossing, and it is likely that if its use had been confined to adults he could have given them sufficient notice and warning to save them from injury. But the evidence shows, and the railroad company should be charged with notice of it, that this crossing, during the morning, as well as in the afternoon, was crowded with school chil. dren going to and returning from school, and during the time the crossing was used by these children their safety demanded more efficient protection than one watchman could afford. The presence of the watchman did not lessen the other duties it owed to the public at this time in moving its trains, or excuse it from exercising the same care it would be required to exercise if no watchman had been stationed there. This being our view of the duty the company owed at the time appellee was injured, it follows that it was such a reckless disregard of the safety of the children using the crossing as amounted to gross negligence to push a train of cars over the crossing without bell or whistle sounding, or without any person on the cars to control or give notice or warning of their movement. We have so written in a number of cases. Peltier v. L. & N. R. R. Co., 29 S. W. 30, 16 Ky. Law Rep. 500; L. & N. R. R. Co. v. Potts, 92 Ky. 30, 17 S. W. 185, 13 Ky. Law Rep. 344; Conley v. C., N. O. & T. P. Ry. Co., 89 Ky. 402, 12 S. W. 764, 11 Ky. Law Rep. 602; Kentucky Central Ry. Co. v. Smith, ruled. Petition over For former opinion, see 150 Ky. 129, 150 S. W. 56. HOBSON, C. J. The facts of the case of Hollis v. Watson, 89 S. W. 548, 28 Ky. Law Rep. 550, were materially different from the facts of this case. The circuit court has a discretion in ruling on motions for continuance, and we cannot say his discretion was abused here. Petition overruled. CHESAPEAKE & O. RY. CO. v. MEYERS. (Court of Appeals of Kentucky. Dec. 3, 1912.) 1. APPEAL AND ERROR (§ 204*)-RULINGS ON EVIDENCE-OBJECTIONS-WAIVER. A defendant who did not object to the admission of improper testimony may not avail himself of the error on appeal. [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 1258-1280; Dec. Dig. § 204.*] 2. EVIDENCE (§ 99*)-PERSONAL INJURIESEXAMINATION BY PHYSICIAN. A plaintiff suing for a personal injury may testify what physicians examined him, and that defendant's physician examined him. [Ed. Note.-For other cases, see Evidence, Cent. Dig. §§ 123, 137-143; Dec. Dig. § 99.*] 3. APPEAL AND ERROR (§ 1060*)-HARMLESS ERROR MISCONDUCT OF COUNSEL. The remark of counsel of plaintiff suing for a personal injury that defendant was insinuating that plaintiff was exaggerating, made in response to an objection to the admission of evidence, is not prejudicial, though improper in the absence of anything to show any such insinuation. [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. § 4135; Dec. Dig. § 1060.*] 4. RAILROADS (8 347*)-ACCIDENTS AT CROSSINGS-DEFECTIVE CROSSINGS-EVIDENCEADMISSIBILITY. In an action for injuries to a traveler caused by a defect in a railroad crossing, the evidence that wheels of vehicles of other travelers had been caught in the defect was admissible to show whether or not the crossing was in a dangerous condition, the condition at the crossing being practically the same at the time of the accident complained of. time of the occurrences testified to as at the [Ed. Note. For other cases, see Railroads, Cent. Dig. §§ 1124-1137; Dec. Dig. § 347.* Affirmed. 5. APPEAL AND ERROR (§ 1046*)-HARMLESS | Chesapeake & Ohio Railway Company. From ERROR-IMPROPER REMARK OF TRIAL Court. a judgment for plaintiff, defendant appeals. Where defendant moved for a peremptory verdict at the close of plaintiff's case, and, when the motion was overruled, informed the court that he rested and would offer no evidence, the statement of the court to the jury that defendant had no evidence to introduce was not prejudicial. [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 4128-4134; Dec. Dig. § 1046.*] 6. NEW TRIAL (§ 162*)-EXCESSIVE DAMAGES -POWER OF COURT TO REDUCE. The general rule that trial courts have no power to remit any part of a judgment, and, if the judgment is excessive, they must award a new trial, does not apply where the items constituting the damages recovered are separable, so that the court may eliminate those not properly recoverable, in which case the court may require plaintiff to remit, or may, on plaintiff's motion, remit the damages representing items not properly recoverable. [Ed. Note. For other cases, see New Trial, Cent. Dig. §§ 324-329; Dec. Dig. § 162.*] 7. DAMAGES (§ 228*)-EXCESSIVE DAMAGES POWER OF COURT TO REDUCE. Where, in an action for personal injuries, there was evidence that an operation would cost $200, but such operation was not shown to be reasonably necessary, and there was a general verdict for $5,700, necessarily composed of $5,000 for general damages, $400 for loss of time, and $300 for physician's bill incurred and to be incurred, the court could, on motion of plaintiff, remit the item of $200 physician's bills for the operation, and award judgment for the balance. [Ed. Note. For other cases, see Damages, Cent. Dig. $ 576-579; Dec. Dig. § 228.*] 8. RAILROADS (§ 350*)-ACCIDENTS AT DEFECTIVE CROSSINGS-RAILROAD CROSSINGS CONTRIBUTORY NEGLIGENCE-QUESTION FOR JURY. Whether a traveler injured on a defective railroad crossing was guilty of contributory negligence held, under the evidence, for the jury. [Ed. Note. For other cases, see Railroads, Cent. Dig. §§ 1152-1192; Dec. Dig. § 350.*] 9. RAILROADS (§ 326*)-ACCIDENTS AT DEFECTIVE CROSSINGS- CONTRIBUTORY NEGLI GENCE. Where a traveler on a highway knew of the defective condition of a railroad crossing, and he failed to exercise for his own safety such care as ordinarily prudent persons ordinarily would exercise under similar circumstances, and his lack of care contributed to the injuries received, and but for such lack of care he would not have been injured, he could not recover. [Ed. Note. For other cases, see Railroads, Cent. Dig. §§ 1037-1042; Dec. Dig. § 326.*] 10. DAMAGES (§ 132*)-PERSONAL INJURIESEXCESSIVE DAMAGES. Galvin & Galvin, of Cincinnati, Ohio, and William A. Burkamp, of Newport, for appellant. Ramsey Washington and Howard M. Benton, both of Newport, for appellee. CLAY, C. The Oneonta and Twelve Mile road is a county road running between Alexandria, the county seat of Campbell county, and Oneonta, a station on the Chesapeake & Ohio Railroad, and a landing on the Ohio river. The road is used by a large number of people. Across this road the Chesapeake & Ohio Railway Company maintains two tracks-a main and a spur track. The two tracks are just far enough apart to allow cars to clear each other in passing. Between two of the rails of the spur track, at a point on the road, is an opening about 21⁄2 inches wide. This condition existed at the time of the accident hereinafter referred to, and had existed for several years. Charging a failure of duty on the part of the railroad company in permitting the road and its tracks, at the point where the tracks crossed the road, to become and remain in a dangerous condition, and that, while driving across the track, one of the runners of his sled was caught in the opening between the two rails of the spur track, thereby causing him to be thrown from his sled and injured, plaintiff, William C. Meyers, brought this action to recover damages. He asked damages in the sum of $6,300, of which $300 was for medical services incurred and to be incurred, $1,000 for loss of time, and $5,000 for mental and physical suffering and permanent impairment of his power to earn money. The item for loss of time was subsequently amended to read $575. The jury returned a verdict in favor of the plaintiff for $5,700. On motion of plaintiff the sum of $200 for medical services to be incurred in the future was remitted. Judgment was entered in favor of plaintiff for $5,500. Defendant appeals. The accident took place on March 20, 1911. At the time of the accident plaintiff was returning to his home from Oneonta station. He was driving a sled which was being drawn by a pair of mules. In crossing the spur track one of the runners of the sled caught in the opening between the two rails, and plaintiff was thrown out. His leg was bruised between the knee and the hip. He received a blow over the eye, which injured the supra-orbital nerve, and caused a catarrhal condition of his head. The principal injury was to his hand, which became badly swollen and inflamed, and remained in that condition for several months. of the hand were so affected that plaintiff Action by William C. Meyers against the has practically lost the use of it. This con A man sustained an injury to his head, affecting one of the nerves, and an injury to his leg and hand, rendering the hand practically useless, and he suffered greatly from its swollen condition. Time lost was worth $400, and he incurred a physician's bill for $100. Held, that a verdict for $5,500 was not excessive. [Ed. Note. For other cases, see Damages, Cent. Dig. §§ 372-385, 396; Dec. Dig. § 132.*] Appeal from Circuit Court, Campbell County. The tendons dition is permanent. Plaintiff was confined | duce." To this statement the defendant obto his bed two or three months, and could jected and excepted. Thereupon the court not walk on his leg for five or six months. He suffered intensely from his injuries, and it is very probable that he will continue to suffer for some time to come. The testimony showed that up to the time of the trial he had incurred a physician's bill of $100. There was also evidence that, in order to have an operation performed, it would be necessary to incur an additional physician's bill of $200. [1] While it was not proper for the court to permit the two physicians who examined plaintiff for the purpose of testifying to state what the reasonable value of their services was, defendant did not object or except to their testimony, and cannot therefore avail itself of the error. [2] The court did not err in permitting plaintiff to testify that defendant's physician examined his hand. There was no impropriety in permitting him to tell what physicians examined him, and to tell who they were, even if one of them happened to be a physician in the employ of the defendant. [3] While the remark of plaintiff's counsel when this evidence was objected to, to the effect that the other side was insinuating that they were exaggerating, and they wanted to show that they gave them every opportunity they wanted, was improper in the absence of anything in the record showing that such was the case, we are not inclined to hold that the statement was prejudicial error. said: "I don't recall just the expression I it would offer no evidence, or it had no how the statement of the court could have prejudiced the substantial rights of the de fendant. Whether defendant says "the defendant rests," or "the defendant will offer no evidence," or "the defendant has no evidence to offer," and the court so informs the jury, the result is practically the same. If, as a matter of fact, the defendant does not offer any evidence, the jury knows it, whether informed by the court or not; and manifestly their verdict cannot be influenced by giving them information of that which they cannot fail to know. While the motion for a new trial was pending, the court, over the objection of the defendant, entered the following order: "Upon motion of plaintiff, the sum of $200, covering future medical services, is remitted from the judgment recovered March 6, 1912." [6] It is insisted that, under the practice of this state, trial courts have no power to remit any portion of a judgment, but that, if the judgment is excessive, they must award the defendant a new trial. While this is the general rule (Brown v. Morris, 3 Bush, 81; L. & N. R. R. Co. v. Earl's Adm'x, 94 Ky. 370, 22 S. W. 607, 15 Ky. Law Rep. 184), yet where the items con [4] During the progress of the trial, the court permitted two or three witnesses to testify either that the wheels of their vehicles had been caught in the opening in the spur track, or they had seen vehicles of others so caught. It was shown that, when these occurrences took place, conditions were practically the same. In admitting this testimony the court admonished the jury that it could be considered for the sole purpose of throwing light on the question whether or not the crossing was in a dangerous condition or otherwise, and for no other purpose. One of the issues was: "Did defend-stituting the damages recovered are sepaant permit the roadway where its tracks crossed it and its tracks to be and remain in a dangerous condition?" The fact that, conditions being the same, other vehicles were caught in the opening in the spur track, is certainly a circumstance tending to show the dangerous condition of the track and roadway. With the limitation contained in the admonition of the court, we think the evidence was clearly admissible. Georgetown, etc., v. Cannon, 7 Ky. Law Rep. 379; 29 Cyc. 611. [5] At the conclusion of the evidence for plaintiff, the defendant moved for a peremptory. After overruling the motion, the court said: "The defendant informs the rable, so that the court may eliminate those not properly recoverable from those recoverable, the court has power to require the plaintiff to remit, or may, on plaintiff's motion, remit, so much of the damages as represents the items which are not properly recoverable (Johnson's Adm'r v. Johnson, 104 Ky. 714, 47 S. W. 883, 20 Ky. Law Rep. 890; Masterson v. Hagan, 17 B. Mon. 325). [7] Here the plaintiff asked general damages in the sum of $5,000. The proof shows that he lost eight months' time, and that his time was reasonably worth $50 a month, making a total of $400 for time lost. Up to the time of the trial he had incurred a physician's bill of $100. There was evi This instruction is not subject to hand would cost $200. However, the witness | fendant. who so testified also advised against the complaint. operation. Manifestly, the verdict is com- The defendant offered several instructions, posed of the following items: $5,000 for to the effect that if the plaintiff knew of general damages; $400 for loss of time; the opening between the rails in the track, $300 for physician's bills, incurred and to and of the danger thereof, and with such be incurred. The evidence fails to show knowledge drove upon the crossing and his that the operation involving the item of $200 physician's bills to be incurred in the future was reasonably necessary or would have to be performed, and it being possible to separate this item from the verdict and judgment, and leave the balance of the judgment intact, we conclude that the remittitur of $200 was properly adjudged. [8] Another point urged by the defendant is that the court erred in overruling its motion for a peremptory. Particular stress is placed upon the fact that plaintiff himself admits that he knew of the opening between the two rails, and that he had frequently warned others of the danger. It is therefore insisted that if he, with knowledge of the opening, drove his sled into it, he was guilty of such contributory negli gence as precludes a recovery. While it is true that plaintiff did know of the existence of the opening, and had known of it for some time, and had also warned others of the danger, yet it also appears that on the occasion in question he had stopped just before reaching the track in question for the purpose of effecting a sale of his tobacco. When he started to cross, there was a man with a team on the other side waiting for him to get over. He says that he thought he heard a train whistle in the distance, and that he had his mind on the approaching train and momentarily forgot the opening in the track. There was also evidence that the sled itself would have a tendency to slide along the tracks. The opening was not a large one, which a person could easily avoid. It is by no means certain that, if he had had his attention fixed on the opening he could have avoided it. It was just as much his duty to use ordinary care to discover the approach of a train and keep out of its way as it was to avoid striking the opening in the rails with his sled. Under the circumstances, therefore, we cannot say as a matter of law that plaintiff was guilty of contributory negligence. The question was one for the jury. [9] The court told the jury that if they believed from the evidence that on the occasion in question plaintiff, having had previous knowledge of such defective condition in said crossing, failed to exercise for his own safety such care as ordinarily prudent persons ordinarily exercise under the same or similar circumstances, and that such lack of care on his part contributed to the injuries received by him, and but for such lack of care on his part he would not have been injured, they should find for the de sled was caught in the opening, the jury should find for the defendant. Instructions of this character were in effect a peremptory instruction for the defendant, and were properly refused for the same reason that the motion for a peremptory was overruled. [10] Aside from the injury to plaintiff's head, which seems to have affected one of the nerves, and the injury to his leg, which lasted for some time, it appears that plaintiff suffered greatly from the swollen and inflamed condition of his hand, and that his hand is now, and will continue to be, practically useless. That being true, we cannot say that the verdict is so excessive as to strike us at first blush as being the result of prejudice or passion. Judgment affirmed. DUFF & ONEY v. ROSE. (Court of Appeals of Kentucky. Dec. 6, 1912.) JUDGMENT (§ 138*)-DEFAULT-VACATION— TIME. An order of the trial court, directing that the allegations of the petition, as amended, be which may be set aside by the court at a subsetaken as confessed, is an interlocutory order, quent term, without following the Code provisions for vacating judgments. [Ed. Note.--For other cases, see Judgment, Cent. Dig. §§ 249-251, 254; Dec. Dig. § 138.*] On petition for rehearing. Former opinion modified, and petition overruled. For former opinion, see 149 Ky. 482, 149 S. W. 884. SETTLE, J. A careful reconsideration of the record in this case gives us no reason for withdrawing or changing the conclusion reached in the opinion on the merits of the case. The petition for a rehearing contains. however, a just criticism of that part of the opinion which apparently conveys the meaning that an order made by the trial court at one term, directing that the allegations of the petition, as amended, be taken as confessed. could not be set aside at a subsequent term, except in the manner provided by the Code for vacating judgments. Manifestly such an order, being merely interlocutory, can for cause be set aside by the court at a subsequent term. What should have been said, and was intended to be said. in the opinion, was that the record showed no grounds for setting aside the order, pro confesso, at the subsequent term. The correction of this error had been made for the publication of the opinion in 149 Ky. 482, 149 |