113 N.W. 102 | N.D. | 1907
The plaintiff was injured by the collision of a caboose in which he was riding, with other cars, at the city of Grafton, in this state, on the 19th of July, 1904. This action was brought for the purpose of recovering damages for the injuries which he sustained, and especially for the loss of hearing in one ear, claimed to be the result of such accident. No claim was made in the complaint for any loss of time, and the only evidence set out relating to loss of time resulting from the accident is found in the question: “How long did it affect your capacity to work ?” And the plaintiff answered: “Upwards of two months it bothered me, or thereabouts.” The record contains no evidence as to the value of his time or services, or any other information from which it could be even approximately ascertained. The court instructed the jury, among other things, that, if they found the plaintiff entitled to recover damages, they had a right to take into consideration the loss of time, if any, the plaintiff had suffered. To this portion of the charge the defendant excepted. The jury returned a verdict for the plaintiff in the sum of $900, and the defendant moved for a new trial, on the ground of errors occurring at the trial, among others being the instruction of the court to the jury relating to the loss of time of the plaintiff. The trial court granted the motion for a new trial without specifying the grounds upon which its order was based.
We do not know on what assigned error the trial court granted the motion for a new trial. It may have considered only one as sufficient, or it may have thought a combination of errors neces,sary. We, however, shall only consider one of the several assigned on the motion, as in our view of -the case that furnished sufficient reason for granting defendant’s motion. It is clear to us that it was justified in granting a new trial for its error in instructing the jury to take into consideration- the loss of time occasioned plaintiff by the accident, at least without limiting its finding for such loss to nominal damages only. Nominal damages are the most that the courts allow in such cases without evidence of the nature of the occupation of the injured party, the value of his time, and such other facts as may throw light on this element
The appellant attempts to distinguish between a charge to find a verdict for loss of time and one, as in the case at bar, to “consider loss of time,” in determining the amount of damages. He does not contend that the former would be permissible. We are unable to discover a distinction. The case was being tried to determine whether plaintiff had been injured by defendant’s negligence, the jury was there to find the facts as disclosed by the evidence and fix the damages, the court to instruct the jury as to the law, and an instruction to consider loss of time in arriving at the damages in dollars and cents could have but one mean
The order of the district court is affirmed, with costs.