(216 S.W.)

true, the only remaining question is whether his contention in the case. The surprise conthe communication of the acceptance on the templated by the Code is such as is not reanext day was within a reasonable time, un-sonably to be anticipated, or perhaps tesder the circumstance of the case. That the timony contrary to a prior understanding answer should be in the affirmative we think between the parties, or something resulting there can be no doubt. Indeed it is not in- from actual fraud or deception. A second sisted that the next day was not a reasonable reason is that if, it be conceded that the altime within which to communicate the ac- leged surprise was sufficient, and of the charceptance, and we conclude that the court acter to authorize the granting of a new trial, properly instructed the jury as embodied in it would then have been the duty of the deinstruction No. 1, submitting plaintiffs' theo- fendant, in order to get the benefit of it, to ry of the case, and that no error was com- ask for the setting aside of the swearing of mitted by refusing to direct a verdict in favor the jury and continuance of the case as soon of defendant. as he was made aware of it. Liverpool, London & Globe Insurance Co. v. Wright & Allen, 158 Ky. 290, 164 S. W. 952; Howard v. Strawbridge & Clothier, 165 Ky. 88, 176 S. W. 977; Shipp's Adm'r v. Suggett's Adm'r, 9 B. Mon. 5, and Ky. Distillers' Warehouse Co. v. Wells, 149 Ky. 275, 148 S. W. 375. A third reason is that according to defendant's testimony he talked to the agent Cobb over the telephone on the morning of the next day after his brother notified him of the acceptance of the offer, and insisted that the acceptance came too late, which Cobb denied, claiming that it was made within the time limit of the offer. He therefore could not have been surprised at Cobb's testimony, which conformed to the contention made by him in that telephone conversation.

[2] What we have said at least partially disposes of ground (2) urged for a reversal of the judgment. Under the contention therein made it is insisted by defendant's counsel that instruction No. 1 was erroneous, in that it did not require the jury to find that plaintiffs had accepted the offer, and that it ignored the right of defendant to withdraw the offer at any time before acceptance because there was no consideration for it. These criticisms would be well founded if there existed any facts for their support. The acceptance of the offer by plaintiffs, and its communication to defendant next day in the manner herein before stated, is not disputed, and the law is that a gratuitous offer may be accepted within a reasonable time before withdrawal. Hence there was no room, under the facts of the case, for the qualification and modification of the instruction, as counsel insist.

[3, 4] The basis for a reversal as contained in subdivision (a) of ground (3) is that defendant was surprised at the testimony of the agent Cobb to the effect that the offer was not limited to the day upon which it was made, and in his motion for a new trial he filed affidavits showing that he had received a letter from plaintiffs about a year before the trial, in which they insisted that if defendant's version of the offer was accepted as true, the day did not expire until midnight, and since the acceptance was delivered at defendant's home before that hour, it was within time, although not communicated to him. Accompanying that letter was one from plaintiffs' attorney at Paris, Ky., giving his construction of the law as to the meaning of the word "day." From these facts it is argued that defendant was led to believe that plaintiffs would not contend that the offer extended beyond the day in which it was made, and that he was surprised when the witness testified to the contrary. There are a number of reasons why the court properly disregarded this ground for a new trial, one of

which is that this is not the character of surprise authorizing the granting of a new trial as contained in subsection 3 of section 340 of the Civil Code, since a litigant cannot be said to be surprised when his antagonist offers testimony to establish facts supporting

[5] In subdivision (b) of ground (3), plaintiff insists upon the right to a new trial because two of the jurors claim to have misunderstood the instructions of the court. In the first place there is absolutely no room for any misunderstanding of the instructions, since they are as plain and concise as it is possible for language to make them; but, independent of this, it is a well-established rule that a verdict may not be impeached, or grounds for its rendition explained, by the testimony of a juror, except in criminal cases a juror may be examined to establish the fact that the verdict was made by lot (Criminal Code, § 272); Taylor v. Giger, Hardin, 587; Heath v. Conway, 1 Bibb, 398; Johnson v. Davenport, 3 J. J. Marshall, 393; Commonwealth v. Skeggs, 3 Bush, 19. As said in the Davenport Case, which is quoted with approval in the Skeggs Case:

"The dangerous tendency of receiving testimony of the jurors for such a purpose is too obvious to require comment. It would open a door so wide, and present temptations so strong, for fraud, corruption, and perjury, as greatly to impair the value of, if not eventually to destroy, this inestimable form of trial by jury."

Upon the whole case we are convinced that none of the grounds relied on are sufficient to authorize a new trial, and the judgment is therefore affirmed.

(186 Ky, 739)

1. CARRIERS

ceeding day and night, and her pain was such LEXINGTON & E. RY. CO. v. ROBINSON. that she returned to her home the second day and went with her father to see a physician, '(Court of Appeals of Kentucky. Nov. 21, Dr. Hogg, who told them the eye was in 1919.) such a condition he could do nothing for it, 320(24) NEGLIGENCE JURY but recommended the application of some linQUESTION IN ACTION FOR INJURIES. iment. This gave some relief. Two or three days later, or about five days after the accident, appellee consulted Dr. Wilgus Back, and she says he removed a cinder from her eye. Though her eyes had been well and

In an action against a railroad for injuries to a girl passenger who got a hot cinder in her eye while passing through a tunnel, the issue of negligence held for the jury.

2. DAMAGES 131(1) EXCESSIVE VERDICT strong before the accident, she says she has

FOR INJURIES TO EYE FROM CINDER.

In an action against a railroad for injuries to eye of a girl passenger from a cinder, an award to plaintiff of $5.000 damages held grossly excessive, and given under the influence of passion or prejudice within Civ. Code Prac. § 340; it appearing reasonably certain that the injury was not permanent, but correctible in some degree at least through the use of glasses.

Appeal from Circuit Court, Breathitt County.

been unable to read or to use her eyes since that day and was still suffering from them at the time of trial three years later.

There have been three trials of this case. A verdict of $250 was set aside by consent; a second trial resulted in a hung jury; and in the third, the one from which the present appeal is prosecuted, appellee was awarded damages in the sum of $5,000.

[1] The evidence in behalf of appellee is anything but satisfactory, yet sufficient to take the case to the jury. However, the Action by Edna Robinson, by Ance Robin- verdict is not only against the weight of the son, her next friend, against the Lexington evidence, but the amount awarded is so ex& Eastern Railway Company. From judg-cessive that for both reasons a reversal must ment for plaintiff, defendant appeals. Reversed, with instructions to award defendant new trial.

O. H. Pollard, of Jackson, Samuel M. Wilson, of Lexington, and Benjamin D. Warfield, of Louisville, for appellant.

J. M. McDaniel, of Beattyville, Kelly Kash, of Irvine, and Hazelrigg & Hazelrigg and Hobson & Hobson, all of Frankfort, for appellee.

be ordered.

Appellee introduced in her behalf Dr. W. P. Hogg, who testified that he met appellee and her father on the street, or in his office, he did not recall which, as it had been some two or three years previous; he did not recall anything much about it; to the best of his knowledge the girl's eye was swollen; he was uncertain whether he prescribed any treatment.

In answer to a hypothetical question, he states that the condition of the eye might be permanent.

QUIN, J. Edna Robinson, 10 years of age, in company with a girl cousin 16 years old, became a passenger on a train of the ap- Dr. Wilgus Back, introduced by appellant, pellant company at Jackson, Ky.; her desti- says that appellee did not consult him with nation being Haddix, some 8 or 10 miles dis-reference to an injury to her eye; that she tant. Edna's father accompanied them to the train. One of the front seats in the ladies' coach having just been vacated, they were seated there; Edna being next to the window, which was open. Her companion's father (Edna's uncle) took a seat in the coach just opposite the girls, but later went into the smoking car. In passing through a tunnel on their way to Haddix, appellée claims that a hot cinder came through the window and struck her in the eye.

After their tickets had been collected and the conductor was on his second trip through the train, and before reaching the tunnel, the girls testify they, in a loud voice, requested the conductor to close the window. This request was made when he was some two or three seats from them. They say he turned, looked at them and towards the window, and continued collecting tickets. He did not lower the window, and the girls claim they were unable to do so. Appellee suffered greatly with her eye that night, and the suc

had a stye on her eye, and he operated on it, which gave her relief. He says he did not take a cinder out of her eye, and there was no evidence of a cinder having been in her eye; he never saw her again from that day until he met her at the government hospital, where she was being treated for some eye trouble. This was a year or two after her visit to him. He testified to the same effect on each of the previous trials. At the time of the last trial he was the regular surgeon for the appellant, but at the time he attended appellee he was not so employed by the company.

Dr. T. F. Wickliffe, also introduced by the appellant, is an eye, ear, nose, and throat specialist in charge of the government hospital at Jackson; says he first saw the appellee March 27, 1914, just after the hospital had been opened. She came to the hospital to have her eyes examined. He made a thorough examination of her eyes and found she had catarrhal conjunctivitis in both eyes.

(216 S.W.)

But this answer is without any probative effect as this witness had testified after several examinations that the trouble with the appellee's eyes was due, in his opinion, to far

This is an inflammation of the conjuntiva, "Well, yes; you would say that is a permathe serous lining of the lids and covering of nent injury if that question is stated correctpart of the eyeball. This was her only ail-ly and fairly." ment. There was no evidence of any inflammation produced by a cinder. She made no reference to any cinder. That a cinder in the eye will produce a redness of the eyelid, or what is called "hyperæmia;" which is a congestion of the blood vessels caused by an ex-sightedness, and he had found no evidence of cessive amount of blood being brought to one spot. He testified that a slippery elm poultice, which appellee's aunt had made and applied to her eyes while at her home in Haddix, was not the proper remedy or treat-knowledge of the facts. ment, as this would likely have caused more inflammation.

Appellee was called before the jury and an examination there made of her eyes by this witness, who states he could find no evidence of any injury to either eye due to a cinder. The condition he found was caused either by farsightedness or nearsightedness; he thought more probably it was the former. A cinder in one eye would not produce catarrhal conjunctivitis in both; that he had never seen any evidence of any injury to her eye by a cinder; that catarrhal conjunctivitis could be produced by a cinder remaining in the eye a long time, but the inflammation would be temporary if removed shortly. It will be recalled at this point that, according to appellee's testimony, Dr. Back removed the cinder within about five days after the accident.

any injury produced by a cinder. It was not necessary for him to assume a state of fact. The necessity for stating a case hypothetically arises where the witness has no personal

[2] These three were the only physicians who testified, and one cannot read their evidence without the conviction that an award of $5,000 is grossly excessive, and, to use the language of the Civil Code of Practice (section 340), it appears to have been given under the influence of passion or prejudice. According to the testimony, appellee's trouble can be arrested by the use of glasses, and, though the accident happened at least three years prior to the last trial it is nowhere in evidence that any effort or attempt has ever been made to supply this necessary, effective, and simple relief.

Appellee and her cousin testified, in rebuttal, that Edna did not consult Dr. Back for a stye; that it was a girl by the name of Etta Robinson that had the stye, and not appellee.

We would not be understood as minimizing in any way the seriousness of an injury to the eye; but it seems reasonably certain the condition of appellee's eyes is not permanent, on the contrary is such as can be overcome or corrected in some degree at least through the use of glasses. It is probable the parties have confused the condition testified to by the physicians with what is known in ophthalmogy as sympathetic ophthalmia, which is a serous or plastic inflammation of the uveal tract in one eye due to the effect of a sim

Continuing his testimony, Dr. Wickliffe says if the eye had been damaged by a cinder there would be some evidence of the injury: that the optic nerve is so far back that it could not be injured by a cinder under any circumstances; and that appellee would only suffer pain from straining the eyes. There were no active ulcers on the girl's eye at the time of the examination, and even though a cinder had injured the eye months before, in the absence of such an ulcer, she would ex-ilar inflammation in the other. It usually perience no pain from reading. He reiterates occurs from five to eight weeks after injury that in his judgment appellee is farsighted, to the exciting eye. The uveal tract conand this, and not a cinder, is the cause of her sists of the iris (muscle curtain forming the trouble, and this condition can be corrected pupil), ciliary body (muscle of accommodaby glasses, though he did not give a pre- tion), and choroid (dark brown nutrient memscription for glasses. He says her eyes were brane in back part of the eye). Such inflaminflamed when he examined them on the first mation is due to a perforation into the inteand second trials; they are still affected; she rior of the eye of traumatic or infective origin, has catarrhal lids, and this condition could and rarely, if ever, occurs without a perforatbe produced by neglect. Catarrhal conjunc-ing lesion, and usually terminates in blindtivitis acute is a mild form of a catarrhalness. But such symptoms or conditions were inflammation of the conjunctiva, evidenced by a hyperæmia and mucoid discharge. This may be caused by any local irritant, such as dust, smoke, etc. With proper treatment the patient gets well in a few weeks. It will pass into a chronic form only through neglect, improper treatment, or the continued presence of the irritant.

not disclosed by an examination of appellee's eyes according to the testimony. Besides, sympathetic ophthalmia seldom follows the removal of a substance, such as a cinder, and if there be any permanent effect it is not evidenced by inflammation but a scar on the cornea. If this scar is over the pupil, vision is interfered with; otherwise no subjective

In answer to a hypothetical question he symptoms obtain. makes this answer:

Upon a return of this case, if appellee has

not been provided with suitable glasses we suggest that this be done, so that upon a retrial both the jury and the court will have the benefit of the result or effect obtained from their use. This test will tend largely to prevent injustice being done to either of the parties. "First. It is my will that as soon after my For the reasons herein stated, the judg-tors, that all my just debts (if any) and my death as may be found convenient by my execument of the lower court is reversed, with instructions to award appellant a new trial.