182 N.W. 1010 | N.D. | 1921
Lead Opinion
This is an appeal from a judgment in favor of the plaintiff for $4,559.50, in an action to recover damages for personal injuries. The plaintiff was in the employ of -the defendant as a carpenter on April 7, 1919. On that day he was traveling, with his foreman Jerden, between Mercer and McClusky, on a speeder, a small car propelled by a gasoline motor. They were going east, facing a severe storm of wind and snow. When they were near the station of Pickersville the wind blew a gas can off the speeder. Jerden stopped the car and asked Daniels, the plaintiff, to go back and pick up the can. Daniels walked back a distance, as he testified, of approximately 100 yards (Jerden testifies about 200 feet), picked up the can, and, as he was turning around, the speeder struck him, knocking him down, injuring his back, cutting his head and his chin, and knocking out some of his upper teeth. He was rendered unconscious by .the impact, was picked
The evidence as to the manner in which the accident occurred is conflicting. The plaintiff and Jerden were the only witnesses giving testimony on this subject. According to the plaintiff, Jerden, at the time of directing him to go back and pick up the can, stated that he would wait; and further, according to his testimony, the car bumped into'him just as he was turning after picking up the can. Jerden denied that he had said he would wait, and testified that after the plaintiff left the car he was doing some repair work, fixing the slide lever by tightening the bolt which moves the engine to the gear. While he was tightening this bolt or turning the burr, the wind began to drift the car westward toward the plaintiff. Pie looked up when he was about 40 feet away from the plaintiff and saw him coming. He continued using the wrench on the burr until he looked up again, when he was about 15 feet from the plaintiff, and, seeing the plaintiff coming along, told him to “look out !” At this time he stepped back on the brake to stop the car, but the brake had gathered snow and ice, and would not take hold. He testified that the car was barely drifting, and that when the plaintiff came to the car he made an attempt to board it, but lost his hold, and the car hit him on the knee, knocking him backward.
At the hospital in Brainerd, plaintiff’s teeth were repaired and his wounds generally were attended to. There was a bruised, swollen place in the lumbar region of the back which required an incision for draining off the accumulated blood serum. The plaintiff returned to McClusky about April 22d, but did not go to work at that time. He then went to the vicinity of Mott, where his family operated a farm. He made a second trip to the hospital at Brainerd in the latter part of May, but it seems that he received no treatment. During the latter part of the month of June and the first part of July, the plaintiff took eight treatments of an osteopathic doctor at Mott, named Allen. Plaintiff testified to pains in the head which frequently prevent sleep; to weakness of the back and one knee, rendering him unable to work. But the doctor that gave him attention at the hospi
The appellant argues that the evidence of negligence is insufficient to form a question of fact for the jury. This question was presented to the trial court by motion for a directed verdict. We are of the opinion that no error was committed. in denying the motion. The jury was warranted in believing the plaintiff’s testimony, to the effect that Jerden, at the time of directing him to go back and get the can, stated that he would wait for him. In view of this testimony we arc not prepared to say that reasonable men might not find that the defendant, in the exercises of ordinary care for the plaintiff’s safety, should have held the car stationary awaiting the plaintiff’s return. When the plaintiff turned back, he would be more or less blinded by the storm, and, with Jerden’s statement in his mind, would not anticipate meeting the car moving toward him.
It is next argued that there is no proof that the plaintiff was engaged in interstate commerce at the time of the injury. This specification is without merit, as the same rule of liability obtains whether the plaintiff was engaged in interstate or intrastate commerce. No procedural question was raised, the solution of which was contingent upon any provision of the Federal Employers’ Liability Act.
In this case there was no motion for a new trial, so the question of the excessiveness of the damages urged by the appellant upon this appeal is not directly involved. There are a number of assignments, however, predicated upon the manner in which the case was submitted to the jury, in connection with which it is proper to refer to the measure of recovery as bearing upon the question of a fair trial. The verdict in this case was a special verdict. Twenty-seven questions were asked, all of which were answered in a manner favorable to the plaintiff. It is unnecessary here to indulge in any criticism of any of these ques
While it may be difficult to so frame questions for a special verdict and to give appropriate instructions upon them in such a way as to obscure to the average intelligent juror the effect of the answers, it is scarcely possible to conceive of a more flagrant violation of the policy of the special verdict statute than that which would result from countenancing the full statement of the allegations of fact on the respective sides and the principal provisions of law upon which reliance is placed for recovery. Whether or not this case would be reversed for this reason alone, it is unnecessary to decide; for there are other matters which, to our minds, destroy the assurance of a fair .trial.
It appears that while the jury was fully instructed as to the issues of fact joined and as to the law applicable to plaintiff’s recovery, there were not only no instructions on the measure of damages, but counsel for the plaintiff, in arguing the case to the jury, appealed to them to base an assessment of damages upon an entirely erroneous standard. He stated to the jury that they would not take $25,000 to have their teeth knocked out and their head bumped on the rail. Such an argument is unwarranted for the reason that the law authorizes the recovery of compensatory damages, not damages based upori an agreed monetary equivalent for voluntary physical mutilation. Reid v. Ehr,
Reversed and remanded.
Dissenting Opinion
(dissenting). I am unable to agree with the conclusion arrived at by the majority opinion. With reference to the court reading the complaint and answer to the jury, thus permitting them to understand the issues, if this were error, it was error without prejudice, and hence not reversible.
The counsel for both plaintiff and defendant must have thoroughly stated the issues as formed by the pleadings, in presenting the case to the jury. Certainly, the first thing the counsel for plaintiff would do, in proceeding to present the case to the court and jury, would be to state to the jury the issues formed by the pleadings; and, no doubt, defendant would do the same thing on presenting his side of the case to the jury.
The trial could not well have been had unless this were done. The reference by the'court to the pleadings, while giving instructions of law, in the circumstances of this case, w'as not prejudicial, reversible error.
We are of the opinion that all of the reasons given for the reversal of the judgment are largely technical. The defendant has had a fair
Dissenting Opinion
(dissenting). It is difficult indeed to ascertain upon what grounds the majority opinion grants a new trial. This opinion determines that no error was committed in denying the motion for a directed verdict. It admits a meritorious cause of action for submission to the jury. The cause was submitted for a special verdict upon twenty-seven questions. There is no complaint made in the majority opinion that the jury did not answer intelligently this multitude of questions, or that it wras in any manner misled by reason of the instructions of the court or the actions of plaintiff’s counsel. Neither is it pointed out in any manner that the verdict is excessive or that prejudice to the rights of the defendant occurred. The statement of the pleadings and the principal provisions of the law upon which reliance is placed for recovery, as stated by the court to the jury, are rot determined in the majority opinion to be cause for reversal. The majority opinion, however, finds that, in connection with the failure of the court to instruct on the measure of damages, plaintiff’s counsel made an unwarranted argument to the jury thereupon. It appears, however, that the court admonished the jury concerning this argument, and further that the defendant has not specified such as error in the assignments of error. Furthermore, the defendant made no motion for a new trial. The majority opinion states that, in the interest of justicé, a new trial should be awarded. As a platitude, this is fine sentiment; but, as a reason for reversing a meritorious cause of action where no prejudice, bias, or specific error are shown, it serves, in my opinion, to bring orderly administration of justice into disrepute. This reversal, in this case, is not based on the reception, improperly, of evidence; practically it is based upon the action of the court’s officers, namely, the trial .judge and plaintiff’s counsel. The thought apparently is that this jury, to whom was submitted proper evidence for its consideration, and who were required to, and did fully, answer twenty-seven questions, concerning this evidence, were unfairly or improperly influenced by the trial court in stating to them too much concerning the pleadings and some general propositions of law, and too little concerning the measure of damages. In my opinion, the reversal in this case is based purely on technical procedural grounds. It discredits the intelligence