96 N.W. 841 | N.D. | 1903
Lead Opinion
The plaintiff seeks to recover damages claimed to>, have been received by him while riding on the defendant’s sidewalk on a bicycle, which damages are claimed to- have been caused by the
This case was in this court on a former appeal, and is reported in 11 N. D. 73, 88 N. W. 1030. On that appeal this court ordered a new trial because of erroneous instructions given to the jury, and the rule was then followed that a municipality owes no greater duty to riders of bicycles, when allowed to ride on sidewalks, than to keep the same in proper condition, for safe travel by pedestrians. On this appeal the assignments of error pertain to the instructions given to the jury solely. There is an assignment of error on the refusal of the court to grant a new trial. But the grounds thereof refer solely to the instructions claimed to be erroneous. There is no specification in the record at all as to the particulars wherein the evidence is insufficient to justify the verdict. No request for instructions by the defendant was refused. Hence consideration of the evidence to determine whether it sustains the verdict, or whether the plaintiff was guilty of contributory negligence, or assumed all risks with knowledge .of the condition of the walk, is not permitted under the statute; and error can be claimed on the giving of instructions only, as none is specified or assigned. Section 5467, Rev. Codes 1899; Pickert v. Rugg, 1 N. D. 230, 46 N. W. 446; National Cash Register Co. v. Pfister, 5 S. D. 143, 58 N. W. 270.
The next assignment urged arises out of the giving of an instruction as to the elements to be considered in assessing the damages. The jury was instructed to take into consideration the plaintiff’s bodily injuries and “his physical pain and mental suffering-arising from such injury.” The objection urged against the instruction is that mental suffering should not have been included as an element of damage in the case. Appellant’s attorney urges that, “there is no claim that the plaintiff suffered any mental impairment' which injured his mental power.” Neither does the complaint' allege, nor the evidence show expressly,, that the plaintiff suffered mentally, nor that there was any impairment of the mental powers-by reason of the injury. The complaint and the evidence show serious physical injury, consisting of breaking two ribs, injuring his arm and shoulder, and other injuries, which were of such character that he was unable to lie in bed, and was compelled to sit in, a chair for 170 hours. Such evidence clearly shows physical injuries-from which physical pain and mental suffering necessarily follow. Mental suffering is the natural and necessary result of physical injury, and equally as much so as physical pain. The physical injury being proved, pain and mental suffering are presumed. The physical pain and mental suffering need not be pleaded nor specially proved, but are taken to follow as a necessary consequence of the physical injury, and to be inseparably connected therewith. There is great uniformity in the authorities on this question. Among those-so holding are the following, which could be added to largely without difficulty: 1 Sutherland on Dam. (2d Ed.) sections 419-421, Fry et al. v. Hillan (Tex. Civ. App.) 37 S. W. 359; Gronan v. Kukkuck, 59 Iowa 18, 12 N. W. 748; C., B. & Q. Ry. v. Warner, 108 Ill. 538; Brown v. Hannibal & St. J. Ry., 99 Mo. 310, 12 S. W. 655 ; McCoy v. Milwaukee St. Ry. Co., 88 Wis. 56, 59 N. W. 453. Defendant’s attorney relies upon Comaskey v. N. P. Ry. Co., 3 N. D. 276, 55 N. W. 732, as supporting his contention. We do not so understand that-case. That case lays down the rule that, before damages on account of the “impairment of the mental powers” become allowable, they
This disposes of all the assignments. The judgment is affirmed.
Rehearing
ON REHEARING.
(October 29, 1903.)
On the reargument appellant’s counsel urged that the plaintiff was guilty of contributory negligence as a matter of law, and that it was nob necessary for appellant to particularly specify wherein the evidence was insufficient to sustain the verdict, inasmuch as. the evidence, considered as a whole, failed to show that the plaintiff was in the exercise of ordinary care in riding over'the walk in question under the circumstances disclosed by the evidence. This contention cannot be upheld. As stated before in the opinion, the insufficiency of the evidence to justify the verdict was not particularly pointed out or specified on the motion for a new trial. This not having been specified, the evidence cannot be considered, and the statement alleging that it was insufficient must be disregarded. If insufficient to justify the verdict in any case, the insufficiency must be pointed out and specified, or the trial and appellate courts must disregard the specification. The language of the statute does not admit of excepted cases, but applies to all cases. The insufficiency of the evidence must be specified on the motion for a new trial, or its insufficiency raised by a motion for a directed verdict,, before the verdict can be set aside on appeal as based on insufficient
Finally, it is urged on the reargument that the specification that “the verdict is against the law of the case” is a sufficient specification to warrant this court in setting aside the verdict as not based on sufficient evidence. The specification “against the law,” as generally applied in code states, means that the verdict is -in disregard of the instruction of the court. The case of Sweeney v. C. P. R. Co., 57 Cal. 15, is especially relied on by counsel to support his contention. In that case, the record is silent as to what specifications were made as grounds for a new trial. The trial court granted a new trial on the ground that the verdict was against the law as laid down in the instructions, and also contrary to the uncontradicted evidence. It is not authority for holding that a verdict is “against law” as based on insufficient evidence when no particular specification of the insufficiency of the evidence is made on the motion for a new trial. In Brumagin v. Bradshaw, 39 Cal. 24, this language is used in disposing of a similar specification of error: “It is not enough to aver that the verdict is against the 'law, and then offer to support the averment by showing that the verdict is not supported by -the evidence, and is for that reason ‘against law.’ If such a course of proceeding were tolerated, all the other specific grounds for new trial enumerated in the statute might, for the same reason, be condensed into one general ground.that ‘the verdict is against law,’ for in that general sense it would be ‘against law’ if there was any valid reason whatsoever for a new trial.” As bearing on the meaning of “against law” in, specifications of error, see also, Declez v. Save, 71 Cal. 552, 12 Pac. 722; Valerius v. Richard, 57 Minn. 443, 59 N. W. 534. The specification that the verdict was “against the law of the case,” when considered with reference to
The judgment is affirmed.