72 Neb. 746 | Neb. | 1904
This is an action for personal injuries received by plaintiff, a minor of the age of three and one-half years, who was thrown from a seat on the front end of a delivery wagon, in the city of South Omaha, and injured in a manner which will be hereafter described. The suit was brought by his foster-mother, as next friend, against the city of South Omaha, and resulted in a verdict and judgment for $10,000 damages, and to reverse this judgment the defendant city brings error to this court.
The facts underlying this controversy are that, when about one year old, plaintiff was abandoned by his father and mother, Richard and Cora IJooten, and given into the care and control of his aunt, Mrs. Anna R. Sutliffe, who, subsequently, legally adopted the child as her own. Mrs. Sutliffe resided with the plaintiff at the village of Bellevue, Nebraska, about six miles distant from the defendant city. On the morning of the injury (July 17, 1902) she left the plaintiff with his brother, who was about six years old, at her home in Bellevue, and went on
There is no complaint in the brief of the defendant city as to the sufficiency of the evidence to establish its liability for the injury, but its very able and exhaustive brief is directed entirely to an attack on the instructions of the trial court on the measure of damage, and to the rulings of the court on the admission and exclusion of testimony bearing on this question. We will examine these complaints as nearly as possible in the order in which they are presented in the city’s brief.
The city in its answer alleged in mitigation of damages that plaintiff’s mother was a woman without character
It is next objected that the instruction stating the issues to the jury did not point out clearly what the material issues were. An examination of the record shows that no exception was taken to the two instructions setting out the issues. In addition to this, however, we think that the issues Avere fairly and clearly set out in those instructions.
The next complaint to AAdiich our attention is directed is as to the action of the trial court in giving paragraph 11 of instructions on its own motion. This instruction is as folloAA’s:
“If you find for the plaintiff, it will be your duty to determine from the evidence the amount of his damages, which should be actual compensation for his injuries. In doing so, you should carefully consider from the evidence, the nature, extent and character of the injuries sustained, you should also determine Avhether or not the injuries to the plaintiff are permanent, and you should alloAv him for all damages which naturally and directly result from his injuries, AAdiether in the past or in the future. You should allow him such damages for bodily pain and mental anguish as under the evidence you believe him entitled to, and you should alloAv him such damages for*750 physical and mental disability, if any such there be, as from the evidence you believe him entitled to. The law establishes no rule by which to fix the amount of damage for bodily pain and mental anguish, but leaves it to you to determine from the evidence the reasonable amount thereof. If you should find from the evidence that the plaintiff will suffer damage by reason of impaired capacity to earn money, if any such impaired capacity you find, then, in estimating this element of the plaintiff’s damage, you must bear in mind the fact that under the law the plaintiff would not be entitled to his earnings until after he became 21 years of age, and you should not allow plaintiff any damages for what he might otherwise have earned before coming of age. There is no testimony in this case upon which you can allow plaintiff anything for expenses occasioned by his injuries.”
It is alleged against this instruction that it permits the jury to award damages for the loss of earning capacity during the minority of the child, because of the clause which says: “You should allow him for all damage's which naturally and directly result from his injuries, whether in the past or in the future.” This reference to the future is interpreted as an authority for allowing damages for loss of earning capacity during minority. But this, to our minds, is a very strained and unreasonable construction of the charge. The portion of the charge in which this clause appears was directed to general damages which might be allowed if the injuries were shown to be permanent in their nature. The portion of the instruction which treats of the loss of earning capacity follows this in its logical order, and plainly and unmistakably tells the jury that they shall not consider any loss of earning capacity during the minority of the child.
It is also urged that there is no evidence in the record to sustain the charge as to the loss of earning capacity after plaintiff had reached his majority. This contention is based on the proposition that neither the Carlisle table
It is further urged that the instruction is erroneous in failing to inform the jury that only such future damages can be allowed as are established with reasonable certainty. In support of this contention the decision of this court in Chicago, R. I. & P. R. Co. v. McDowell, 66 Neb. 170, is cited. An instruction in this case was condemned by this court because it permitted the jury to consider such injuries as plaintiff “may hereafter suffer,” it being held that, to charge a jury so as to allow damages to the plaintiff that he may hereafter suffer, opens a wide field of speculation, and permits an award based on conjecture rather than on specific proof. But the instruction in the case at bar we do not think obnoxious to this objection, for the charge- limits the award of damages to such as “naturally and directly result from his injuries.” In other words, it limits the recovery to such damages as the jury believed did actually result from the injury. The court further said: “If you should find from the evidence that the plaintiff will suffer damages by reason of
For the purpose of examining the alleged errors committed by the trial court in the admission of evidence offered by plaintiff touching on the measure of damages, it is necessary to refer to the allegations of the petition with reference to the injury. The petition, after describing with particularity the injuries received by plaintiff, alleges that one of the parietal bones was caused to press downward upon the brain of plaintiff, thereby causing serious, dangerous and permanent injuries to body and mind. It also alleges that plaintiff’s bodily health and mental condition have been seriously, dangerously and permanently impaired; that prior to the injuries plaintiff was an exceedingly bright boy, but that since the injuries he has become desultory and dull, and his mental and bodily activity has greatly deteriorated. Under this and other similar allegations plaintiff was permitted to show, over the objection of the defendant, that before the injury he could speak plainly, but that since the injury he was unable to speak without stuttering. That before the injury he was left-handed, but that since the injury he had changed from the use of his left to that of his right hand. That before the injury he had perfect control of his bladder, but that since the injury he had lost this control. It is urged against the admission of this testimony that plaintiff could not show those alleged injuries under the general allegations of the petition, and that, to render this testimony competent, there should have been a particular allegation of damages arising from each of these causes in the petition. The expert testimony offered by plaintiff tended to show that each of these effects were the logical result of the injury to the brain functions caused by pressure upon the brain by the parietal bone. In other words, if the plaintiff’s medical experts were
It is further urged against the admission of this testimony that the medical experts introduced by plaintiff only testified that, in their opinions, these effects were produced by the injury to the brain, and that they did not positively trace them to such injury. When medical testimony is relied upon to prove the cause or effect of a physical injury, it seldom goes further than an opinion based on the experience of the witness and the general learning of the profession. Positive statements of fact are seldom indulged in by physicians when testifying as experts, and yet this character of testimony is universally admitted by the courts of this country. Peterson v. Chicago, M. & St. P. R. Co., 38 Minn. 511, 39 N. W. 485;
The next alleged error called to our attention is that with reference to the action of the trial court in excluding certain testimony offered from the deposition of Dr. Betts by the defendant. The evidence offered bore, if at all, very remotely on the measure of damage, and much of it was clearly' incompetent. When objections were sustained to the questions propounded, defendant did not offer the answers contained in the depositions, and have a ruling of the court on such offer. Under the well-established rule of this court, when testimony is offered, and an objection is made and sustained to a question propounded, the party offering the evidence must follow the question with the offer of proof, to entitle him to a review of the ruling of the district court by this tribunal. Objections as to other evidence excluded are wholly unfounded, and do not require a further discussion.
After a careful review of the record in this case, we have failed to find any errors prejudicial to defendant in the trial of the cause, unless it be in the amount of damages awarded by the court and jury. It is plain that in suits of this nature, where the burden of the damage awarded falls upon the taxpayers of a city or village, who are, at most, only very indirectly responsible for the negligence occasioning the injury, the award should be confined strictly to such damages as are plainly compensatory. We also fully recognize that there is no rule by which an injury, such as the evidence in this case shows plaintiff to have suffered, can be estimated in dollars and cents. However, after much hesitation, and a careful review of the testimony bearing on the nature and extent of plaintiff’s injury, we are inclined to think that the damages awarded are somewhat excessive. It appears to us that the evidence fairly shows that plaintiff, as a result of his injury, will bear a foreboding looking scar on his head and face during his natural life; that he may
We therefore recommend that, unless plaintiff enter a remittitur of $3,000 from the judgment awarded in the district court within 30 days from the filing of this opinion, the judgment of the district court be reversed and the cause remanded for further proceedings. But that if such remittitur is filed the judgment of the district court be affirmed.
For the reasons stated in the foregoing opinion, it is ordered that the judgment of the district court be reversed and the cause remanded for further proceedings, unless the plaintiff enter a remittitur of $3,000 within 30 days of the filing of this opinion; and it is further ordered that if such remittitur be filed the judgment of the district court be affirmed.
Judgment accordingly.