No. 4376 | Colo. | Jan 15, 1903
delivered the opinion of the court.
Action in damages by Charles Timbers against the city of Pueblo for personal injuries. Prom a judgment in plaintiff’s favor for $2,750, defendant appeals. Plaintiff fell into an excavation in one of the public streets in the city of Pueblo which, according to the uncontradicted evidence, had been negligently allowed by defendant to remain therein for an unreasonable length of time without any protection. At the trial the only contested question, and the one to which the instructions were confined, was the amount of the recovery, and the only errors assigned and argued are based on the giving of certain instructions. It is true that appellant asserts that the verdict was too large, but its counsel does not point out wherein it is excessive. And as the evidence bearing upon the extent and nature of plaintiff’s injuries is not set out in the abstract, we do not consider this assignment entitled to any consideration.
The instructions were separately numbered, and the only exception saved was: “Defendant excepts to the giving of each and every instruction, save and
1. For the purpose of the argument appellant concedes that where mental suffering is an element of physical pain, or a necessary consequence of it, or the natural and proximate result of a physical injury, damages for such mental suffering may be recovered, citing Sedgwick on Damages (7th ed.), top page 543. But learned counsel says that such cases are rare indeed, and that this ease presents no feature that warrants the recovery of damages for mental suffering. It is also said that not only is there no allegation in the complaint that plaintiff endured mental suffering, but there is no evidence whatever of that sort. Notwithstanding these considerations, appellant contends that in instructions 2 and 4 the court impliedly, at least, told the jury that they might award to the plaintiff such damages for mental, as well as physical, suffering as, under the circumstances of the case, they thought he was entitled to.
It seems that one of the injuries which plaintiff received was a fracture of the collar-bone, and it was claimed by defendant that his inability to regain the proper use and strength thereof was due to the fact of a lack of sufficient exercise during his convalescence ; and that neglect- to exercise arose from a mental disinclination to use the arm and shoulder because of the physical pain which such exercise produced, and that such physical pain operated as a deterrent upon his mind in respect to the exercise. In
2. In instruction No. 2 the court below does say that, among other elements which the jury may consider in estimating damages, they may take into consideration plaintiff’s suffering in body and mind, if any, resulting from the injury. ■ If, as appellant contends, there was no evidence of mental suffering, the instruction might be regarded as harmless; but a conclusive reply to its contention is that the instruction contains more than one distinct legal proposition, one of which is that the plaintiff can recover only compensatory damages. This certainly was a correct legal statement, and if defendant had fault to find with another portion of the same instruction relating to mental suffering, it should have specifically called the court’s attention to that element at the time so that, if wrong, it might have been eliminated. The exception as preserved does not entitle appellant to raise the point here.
3. In instruction No. 3 the court, in effect, said that if plaintiff’s injuries were .permanent the amount of damages which he was entitled to receive should be to the extent, taking his expectancy, that they impaired his ability-to earn a livelihood and perform, his ordinary • occupation. In a separate and distinct proposition of the same instruction the jury were told that, if the injury was not permanent, damages should be-limited to. the extent that the temporary injury impaired such ability. The defendant’s exception, as we have already stated, was general. The specific fault now found with this instruction is that the jury were told that if -the injuries affected plaintiff’s ability to earn a livelihood ór to work, then
We do not think that the instruction, taken as a whole, is susceptible to this criticism. If it were, still under the rule already announced, defendant may not now avail itself of the error. The instruction contains two distinct propositions, one stating the measure of damages which plaintiff is entitled to receive if his injury is permanent, the other if it is only temporary; and the latter is undoubtedly right.
4. Another- objection mentioned is that the court erred in instructing the jury that in arriving at the amount of damages which plaintiff ought to recover, they might take into consideration all the circumstances surrounding the case. Counsel does not say in what the error consists, and we do not feel called upon to speculate about it.
Since the evidence has not been abstracted,' and it is conceded that the defendant was negligent and the plaintiff free from fault, and that he suffered injuries, we are justified in presuming that the evidence supports the judgment. We cannot say that it ought to have been different.- Indeed, we are satis-, fied from an examination of the fragmentary record presented that the jury were not misled, and that the instructions, taken together, are right. Let the judgment be affirmed.
Affirmed.