104 S.W. 565 | Ct. App. Ind. Terr. | 1907
Plaintiff'in error, on December 9, 1903, was operating a coal mine. Defendant in error was therein employed as a “rope rider,” which required him to deliver empty cars to the miners and take away and send to the surface the loaded cars, which were drawn by a rope over railway tracks in the main entry. This entry was 500 yards long, from 8 to 6 feet wide, and from 6 to 4J^ feet high, and was upon an incline from the surface downward along the slope of the vein of coal. The roof of the entry was supported by timbers resting on niches cut in the coal. The defendant, at the close of the day’s work, was riding out of the mine on the coupling between two of the loaded cars, and while passing under a low place, where the roof was but 4J^ feet high, the
Plaintiff assigns 15 errors, but one of which is deemed necessary to consider, and that is the tenth assignment of error, which reads: “Tenth assignment of error. The court erred in rendering judgment upon the verdict of the jury for the reason that the judgment rendered is grossly excessive in amount.” A careful examination of this record fails to show any evidence upon which the jury could properly allow more than nominal damages. There is nothing to show the length of time the defendant was unable to perform his usual labor; no evidence of what his wages were when injured, wbat he had ever earned or could earn, what money he had expended, or was rendered liable to pay because of said injuries; no direct evidence as to whether his injuries were permanent except one physician testified that on the night before the trial he had made a physical examination of the defendant, and this was some two years after the injury, that he found that two, and possibly three, of his ribs had been fractured, and his clavicle had been fractured, and in his opinion the injuries would impair his capacity for manual labor somewhat like a half. While the court instructed the jury at length, the only instruction as to measure of damages or amount of recovery was in the following words: “I want to say that if this injury occurred to the plaintiff by reason of the negligence of the defendant,
It "is clear that this judgment should be reversed, and cause remanded for further proceedings and trial.
Reversed and remanded.