This is a direct appeal proceeding where this court is asked to review a record and judgment arriving here from Campbell County, wherein Lee R. Glover was plaintiff, respondent here, and John Berger was defendant, but now the appellant.
Plaintiff’s petition was originally filed October 17, 1951, in Crook County, Wyoming, where the parties reside but was removed to Campbell County on change
That on account of the injury thus inflicted plaintiff was obliged to hire a car to transport him from Oshoto, Wyoming, (the name of the location near where he was hurt) to Sundance, Wyoming, and to there employ a physician to save his life; from Sundance he was obliged to hire additional transportation to a hospital at Hot Springs, South Dakota, in orde rto save his right forearm and hand, all to his damage in the sum of $200.00.
That due to this injury plaintiff was forced to undergo an operation in said last named hospital for the removal of bone splinters and mutilated nerve and muscle tissue during which time he suffered great mental distress and bodily pain to his damage in the sum of $25,000. That plaintiff is reliably informed, and so states, that it will be necessary for him to remain in said hospital for eight weeks; that for a year thereafter, he will be unable to pursue his usual and customary occupation; that during said year he will have to undergo another operation in order that said
It was prayed that he recover of the defendant $55,000 compensatory damages and $50,000 punitive damages.
The defendant for his answer to plaintiff’s petition denied each allegation of that pleading. For a second defense he stated in substance that he admitted he shot plaintiff at the time and place alleged in plaintiff’s petition and that without excuse or justification plaintiff and one Henry Boles, as aggressors, approached defendant at his home in a rude, insolent, angry, riotous and turbulent manner and by threatening language and conduct caused him to believe or to have reasonable grounds for believing that bоth he and Mae Baker, an employee of the defendant, were about to be assaulted, battered, injured or killed by the plaintiff and Henry Boles, and in defense of his person and that of Mae Baker, and in preventing and attempting to prevent the carrying out of any such assault, battery or killing, and with no more use of force or violence than was reasonably believed by him sufficient to so defend his person an dprevent such offense, he shot plaintiff. For a third defense plaintiff, as defendant avers, aggravated and provoked the shooting by his (plaintiff’s)
Plaintiff’s reply to defendant’s pleading was a denial of “each and every allegation of new matter in said answer contained.”
It is stated in appellant’s brief in this court, and it is not denied, that the District Judge while presiding in Crook County at the time the change of venue was applied for and granted, set certain cases for trial at Gillette, Wyoming, the county seat of Campbell County, to be heard before a jury in said county. Among these cаses were the criminal case of State of Wyoming vs. John Berger, Defendant, and the civil case of Glover vs. Berger, in which this appeal is prosecuted. This, the Judge did, by letter sent to all counsel of record in said cases. These settings of cases for trial were made by the presiding Judge aforesaid in Sun-dance, the county seat of Crook County; the letter thus sent was of date' October 3, 1952. This letter, above mentioned, also set for trial other cases which were designated to be heard following the disposition of the civil action in the Glover case. The criminal case aforesaid was designated to commence on Monday, October 27,1952, at 9:30 a.m. while the Glover civil action case was set to be heard on Tuesday, October 28, 1952, at 1:30 p.m. to follow the conclusion of the criminal action. The jury in the criminal action returned a verdict against the defendant, Berger, of guilty of the crime of assault and battery, although the State had charged Berger in the criminal case aforesaid with the crime of assault and battery with intent to murder Glover. Before the verdict in the criminal case was returned into court the trial judge requested the remainder of the jury panel, not engaged in hearing the criminal ease aforesaid and consisting of some 23 persons, to withdraw from the courtroom until the verdict
Prior to the civil case being called for trial objections were, on October 18, 1952, filed on behalf of the defendant, Berger, to proceed with that trial on October 28, 1952, the date set therefor, on the ground that the defendant could not receive a fair trial because that part of the jury panel not hearing the criminаl case would learn of those facts during the course of the criminal trial and request was made that the Glover civil case, which it was stated, would involve the presentation of the same facts as would be submitted in the criminal action be continued until the next jury term in Campbell County. To these objections, plaintiff, Glover, filed a “resistance” setting out that plaintiff has already prepared for trial twice at a cost of upwards of $350; that if the trial of said cause should be continued it will be more than two years before another hearing of the Glover civil case could be heard and plaintiff will lose the benefit of his existing preparations for trial and be faced with a likelihood of losing important witnesses who were interviewed in the two previous preparations for trial because of their leaving the State of Wyoming. Again on October 28, after the civil case was called for trial counsel for defendant sought again orally for a continuance because of the rendition of the verdict in the criminal case and because a jury panel of only 23 persons were then avail
“Any court, for good cause shown, other than the absence of evidence, may continue any action at any stage of the proceedings, at the cost of the applicant, to be paid as the court shall direct.”
These applications for a continuance, one written and the other oral, on behalf of the defendant, Berger, were denied by the court and the trial was proceeded with in the civil case resulting in a verdict for plaintiff in the sum of $15,000; $10,000 thereof as compensatory damages and $5,000 as punitive damages. Upon this verdict the cоurt rendered the judgment, now appealed from, as mentioned above.
The facts of the instant case which we are permitted to consider (see Jacoby vs. The Town of the City of Gillette,
Plaintiff testified that he is 32 years old, was born and raised in Crook County. That he knew John Berger and Henry Boles and also Mae Baker and her husband, Darryl Baker; that plaintiff is a rancher running about 2400 acres and about 27 head of cattle; that he has been on his ranch since he was a small boy; that he joined
Glover went to the hospital at Hot Springs on September 13, 1951, the day of the shooting. He was given leave of absence from time to time and then had to go back to the hospital. He was discharged finally from the hospital the latter part of April, 1952. He, Glover, remembers receiving all of the services that Dr. Brown testified to in the case. In the June following his discharge in April he returned to the hospital for examination. Glover testified that he had considerable pain while he was in the hospital. The pain began before he reached the hospital. The arm was very painful from Oshoto to Sundance; and he had considerable pain on the drive from Sundance to Hot Springs. At times the doctors would give him something which would help to ease the pains. At the end of December, 1951, Glover had undergone another operation. It was explained to him by the doctors in the Veterans Hospital that they were doing all that could be done for him but that the pain was something he would just have to bear. Glover stated he suffered and was extremely uncomfortable from the nerve operation performed on his arm. He also suffered mental distress while he was in the hospital saying he was a rancher and he was worried about his wife and children. He had no one at his ranch to take care of things. His wife was pregnant at that time and was in no condition to take care of the ranch and he just didn’t know what to do at that time. He testified he had to have someone to take care of the ranch and he made an agreement with a friend named Fred Walker that if Fred would take care of the Glover’s place for a year he, Glover, would agree to split the calf crop and all the proceeds from the place for the year. Walker took over the place about October 1, 1951. Previous to the shooting Glover had
Glover made an agreement for the second year with Mr. Walker because he, Glover, didn’t have the money to hire someone to take care of the place. Glover sold half his calf crop, 12 head, and received $868.00 for the animals. Walker got 12 calves also. It was agreed that Walker was to put the hay up himself that was raised on the Glover ranch. Walker got 20 tons of hay of the fair market value of $35.00 per ton. Walker had the grass on the Glover ranch for his calves and for some of his milch cows and the net income from the Glover ranch in 1950 was $2,060 and for 1951 it was $3,721. The average income to Glover for these two years was $2890. He had some income in 1952 from work by helping a man in Spearfish, South Dakota, work on a garage at 50 cents an hour. Glover stated no one would hire him because he was crippled but that this one man did hire him to help put the stucco wire on a garage. He worked for this man about two weeks and made about $20.00. Glover testified he learned to handle a truck and push and pull the levers without trying to grip them and he worked for Peter Kiewits on the truck job for about six weeks. Then they gave him a job of picking up rocks, some concrete for rip-rapping, but he found that he could not pick up these rocks. At the end of the day he was given his pay-off check because he couldn’t do the work. He stated he did not find another job although he repeatedly tried to get one. His total earnings in 1952 were $467.16.
Glover stated at the trial that his arm ached and
He stated that he incurred an indebtedness in the Sundance hospital of $15.00.
Glover’s ranch land is in partnership between Glover and his brother, but there is no partnership in the stock which Glover owns. Glover stated that he is leasing at the present time the land from his brother that he owns by paying off the taxes and a land note. Glover said that that arrangement has existed since 1949. That was the situation which existed at the time he, Glover, was shot. Glover was then operating the entire unit by himself. There were about 1100 acres in the names of Glover and his brother jointly. However, his brother had nothing to do with Glover’s ranch operation. Glover stated he runs between 27 or 28 Hereford cattle on his ranch. They are breeder stock most of them. He has one bull; the rest are cows.
Walker gets to use the land in connection with running Glover’s cattle together with his own, Walker’s, cattle on the ranch.
Glover testified he has known John Berger from the early years of his life. Berger and Glover had some trouble about keeping the former’s horses off the Glover ranch.
Glover stated that on the afternoon of September 12, 1951, there was no ill will entertained by Glover toward
He left home some time before 8 o’clock on the morning of the 13th of September. Boles’ conversation at Mrs. Fowler’s place was that Mrs. Baker had come over and said a couple of the Fowler bulls were over at the Berger place and for them to come and get them and also to have Glover help in estimating the damages inflicted on the Baker animal. That Glover had no part to play in connection with these bulls other than to assist Henry Boles in taking the Fowler bulls back home and to act as an appraiser on the damage that had been done to Mrs. Baker’s bull.
Howard Cummins, called as a witness, testified he ran a motor grader patrol for the Wyodak Chemical Company. Hе stated he was in the vicinity of the Berger ranch on September 13, 1951, and saw Glover at that time. That when he first saw Boles and Glover he could see that they had their hands up in the air and were still on their horses. He ran the grader as close to the house as the road goes, or about 100 yards; then he got off the grader and saw that one of the men was off his horse. He found out later that that was Lee Glover. When Cummins got close to the house Lee Glover was kneeling on the ground holding his arm. Berger at that time was holding the rifle on Boles while
After getting the two bulls out of the corral at Berger’s place Mr. Darryl Baker gave Boles Mr. Glover’s horse. He stated he did not hear Boles say anything at any time during this period. Boles left about seven or eight minutes after Cummins arrived at the Berger house. Cummins said he helped Mrs. Baker bind up Glover’s arm and also tightened the tourniquet once or twice.
There was no medical testimony offered or admitted except on behalf of the plaintiff.
Dr. J. F. Clarenbaugh, the first doctor who saw Glоver after the shooting had occurred, testified substantially as follows: He lives in Sundance, Wyoming; he has been 50 years in the practice as a physician and surgeon. (Defendant’s counsel admitted Dr. Claren-baugh’s qualifications as a physician and surgeon without requiring testimony on the point.) The doctor stated he had known Lee Glover about 15 years; that he saw Lee Glover on September 13,1951, at the Beagle Hospital in Sundance, Wyoming. Glover was brought in suffering from a gun shot wound of the arm and that the doctor made an examination of him at that time. That he found that the wound was a bad one in the right forearm; that he had a broken bone and the muscular tissues were all torn; and that Glover had been having quite a severe hemorrhage. Glover was very weak from loss of blood; he was given sedatives and the flow of blood from the wound was stopped. The wound was cleaned by the doctor as much as it was possible and then he ordered an ambulance and had Glover taken to the Veterans Hospital in Hot Springs, South Dakota. Dr. Clarenbaugh went with Glover in
Dr. Schuyler Brown the second medical witness called by the plaintiff testified that he resides in Lincoln, Nebraska. His business is that of a surgeon and he has been in that work since 1940. His qualifications were admitted by counsel for the defendant. Dr. Brown testified that on September 18, 1951, he was Chief Surgeon at the Veterans Administration Center at Hot Springs, South Dakota, and that that was the day he first saw Mr. Glover, who was in the surgical ward at the Veterans Hospital aforesaid. He made an examination of Lee Glover at that time. His examination was in connection with an examination being made by one of his associates Dr. Johnston. He found that Glover was in a condition of extreme shock with low blood pressure and a rapid pulse. That he was pale but that he was quite rational. Lee Glover had a gun shot wound of the right forearm. The dressings that were on at the time of his arrival at the hospital were quite saturated with blood. The wound of entrance was on the volar surface of the arm. The wound of exit was on the dorsal portion of the arm, i.e. the back of the forearm. The wound of entrance was approximately %" in diameter and the wound of exit was about 2" in diameter. He stated that the one bone in the forearm, the ulna, was broken and there was, as the previous Doctor stated, very extensive injury to the muscles— they were in a rather shredded condition as would be found under those circumstances. The arm was greatly swollen, as is always the case where a bullet passes through an extremity, and that he would say probably
Dr. Brown stated that the surgeons attending Glover were concerned especially with the nerve injuries which were very extensive in Glover’s case — involving all three of the nerves in the forearm. On December 19th a neurosurgeon whom the Veterans Hospital brought in from Minneapolis, Minn., examined Glover. He found that there was a complete severance of the ulnar nerve in addition to the injuries to the radial and medial nerves. And he recommended an operation upon the ulnar nerve in the attempt to bring the two ends together in the hope that they would grow and that Glover would regain the innervation of that portion of his hand which was innervated by that nerve. By innervation is meant the stimulus which is given to a muscle by a nerve; that is, the stimulus going down the
Dr. Lyle French, the neurosurgeon, operated on Glover the following day and Dr. Brown was present at the operation which was performed on the 20th of December, 1951. At that procedure it was found that the ulnar nerve had been completely severed and a section of the nerve, two centimeters in length, (roughly %" in length) had been destroyed. Dr. French then mobilized the nerve, that is, loosened it from the attachment to adjacent tissue to give it a little additional length; he also loosened it in the elbow region and then joined the two ends together by the fine type of sutures that neurosurgeons use for that purpose.
Glover was given leaves of absence for a couple of weeks, from time to time. Subjectively Lee Glover underwent much pain. All that is something that is, of course, experienced by the patient and all that a physician can do is to make some estimate of what must have been the case from the appearance of the patient and from what he knows such injuries cause other patients. Dr. Brown stated that Mr. Glover did undergo considerable pain. The acute pain which one has, the severe pain following a severe injury, tends to lessen as healing takes place. However, with nerve injuries there is very generally residual pain and abnormal sensations which continue indefinitely.
Glover, during his stay in hospital and from observation during his frequent examinations expressed great concern and worry about his family, children and ranch. Dr. Brown stated that everything was done that could be done to save Mr. Glover’s arm. There was in the region of the wound of exit a very great scarring down of the muscles and of the skin which involved in this scarring down the radial nerve, another of the three nerves, and on February 10th, Glover was again operated on to remove that scar tissue, which by this time
The surgeon further testified that Glover has very little use of the hand and he would say that there is a disability of 60% to 90%, and he stated further that the injury sustained is of a permanent character. When Mr. Glover first came to the hospital the surgeon,
Other facts will be mentioned as necessary in connection with the consideration of the legal questions involved.
The first claim of prejudicial error on the part of the trial court is that it should not have denied defendant’s request for a continuance over the fall jury term in Campbell County. It is a general rule, well known to the legal profession, that the granting or refusing of a request for a continuance of a trial of a case is ordinarily a matter within the sound discretion of the trial court under the circumstances of each case. § 3-2002 W.C.S. 1945 is of aid here. It has already been quoted and will not be repeated at this point. It may be observed that although the defendant knew that plain
It does not follow that becausе substantially the same facts were involved in the criminal cause as were required to be submitted in the civil cause that the jurors in the latter case could not deal fairly and impartially with the defendant in the last mentioned proceeding. It is to be noted that the parties were different and that different legal principles had to be applied in the criminal and civil cases. If the cause had been continued there could be no assurance that a jury panel could have been secured more impartial than the one that was sworn to serve in the civil case.
“ * * * nor is public excitement or prejudice ordinarily deemed a sufficient ground where the statute authorizes a party to ascertain the state of mind of a juror by preliminary examination. The decision in such cases, however, rests in the discretion of the court. A continuance is not warranted because a report of the recent trial of another cause depending on the same facts and principles has been рublished in a newspaper.”
In Hurst v. Wickerly, 12 Fed. Cas. p. 1046, No. 6,940, the court held that:
“It is no ground for a continuance of a cause, that there has been published a report of the evidence, the arguments of counsel, and the charge of the court, in a case which has been tried; depending upon the same facts and principles. The publication of such a report of the proceedings of the court, is proper.”
In Williams v. Altruda, 74 R. I. 47, 58 A. (2d) 562, 565, the court said:
“Furthermore, the defendant did not avail himself of the provisions of General Laws 1938, chapter 506, § 35, and move that each juror be examined on oath to ascertain whether, as a result of newspaper articles, the juror entertained any prejudice against the police in general and the defendant in particular. As a matter of fact, after a jury apparently satisfactory to the defendant was drawn, the trial justice, on his own motion and before the jury was sworn in, made inquiry to that effect.
“The burden of proof is on the party moving for a continuance. Ordinarily the granting or denial of such a motion is within the discretion of the triаl court and its action will not be reversed unless there is a clear abuse of discretion. Anthony v. Anthony & Cowell Co., 40 R. I. 1,99 A. 641 ; Wolfe v. Wolfe, R.I.,104 A. 689 . The view expressed in these cases is in accord with the great weight of authority. See86 A.L.R. 1249 annotation. An examination of the record before us does notdisclose by competent proof that there was prevailing in the community such prejudice against the defendant or the police generally as should have moved the trial court to grant a continuance on the ground that the case could not then be tried by a fair and impartial jury. On the evidence here the trial court did not abuse its discretion in denying defendant’s motion for a continuance. This exception is overruled.”
So in Courier-Journal Co. v. Sallee,
“The propriety of granting a continuance on this ground is necessarily relegated to the discretion of the trial judge, who, from closer contact with the people, is better able to judge of the intensity and universality of the prejudice complained. Ordinarily, public excitement or prejudice is not deemed sufficient ground for a continuance where the statute authorizes a party to ascertain the state of mind of a juror by examining him preliminary to chаllenge.”
We cannot see that the trial court abused its discretion under the circumstances presented by this record in declining to grant defendant’s applications for a continuance.
The complaint is made that Dr. Brown should not have been allowed to testify as to the ordinary life expectancy of the plaintiff. There is not the slightest question that Dr. Brown was qualified as an able and experienced physician and surgeon. Indeed, defendant’s counsel admitted his qualifications as such; the fact that he was chief surgeon at the Administration Center of the Hot Springs, South Dakota, Veterans Hospital should be given some weight in considering this matter. The doctor pointed out that the American Experience Mortality Table is subject to some question because it is old and as the doctor stated, “people are living longer today.” The doctors statement in this respect is shown, indeed, to be accurate in respect of
“The text in 17 Corpus Juris, 875, § 181, states the rule as follows: ‘Where the permanency is controverted, the mortality tables may be admitted to be considered by the jury in case they find that the injury is permanent. Direct evidence as to plaintiff’s expectancy of life, however, is not essential, but the jury may determine such fact from their own knowledge and from the proof of the age, health, and habits of the person and other facts before them.’ Couch’s age was not proved, but at the time he was employed as a pile driver, at a salary of $5. per day, and must have been in reasonably good health. By observation of his appearance the jury could estimate approximately his age and life expectancy.”
In McCue v. Borough of Knoxville, the Supreme Court of Pennsylvania held that: (
“2. In an action for рersonal injuries, a physician may testify as to what, according to his knowledge of mortality tables will be the duration of the life of a man of the age of plaintiff.”
In Johnson v. Fiske,
“A mortality table is not the exclusive evidence admissible to establish the expectancy of life, since age, health, habits and physical condition may afford evidence thereof.”
“Mortality tables, however, are not the exclusive evidence admissible to establish life expectancy and the jury may determine such fact from their own knowledge and from the proof of the age, health and habits of the person and other facts before them.”
We conclude that there is no merit in defendant’s contention urged as above.
Complaint is made that the court erred in admitting certain other evidence; we have carefully examined all of the rulings charged and have reached the conclusion that if there was error committed it was not prejudicial. To consider them all in detail would unwarrantably extend this opinion and serve no useful purpose. In passing we mention, however, that it is insisted that the bill of Roberts for $65.50 on account of ambulance service was not shown to be reasonable. We think it is common knowledge that to furnish an ambulance and driver to carry an injured man and his physician as speedily as possible from Sundance to Hot Springs, South Dakota, a distance of considerably over 100 miles the bill rendered was not unreasonable.
It is urged that proof of special damages was al-lawed by the court when it was not pleaded. In plaintiff’s petition we find it stated as already hereinabove set forth that: “Plaintiff is realiably informed, therefore states the fact to be, that it will be necessary for him to remain in said hospital for eight weeks; that for a year thereafter, he will be unable to pursue his usual and customary occupation; that during said year, he will have to undergo another operation in order that said forearm be further repaired and during all of which year, Plaintiff will not have the free use of his right arm and hand and he will be required to employ
“As a general rule where the allegations of special damages are definite enough to apprise the adverse party fully of the probable evidence which will be introduced by plaintiff and to enable him to prepare his defense, they will be deemed sufficient.”
It is suggested that the arrangement entered into between plaintiff and Walker was not a contract of hiring help as pleaded. It seems to us that because Glover had no money, his arrangement with Walker in effect amounted to an employment to meet the extremely difficult situation which he was obliged to solve the best he could. Defendant did not claim he was surprised and he undoubtedly had witnesses available who could have testified if it were a fact that Glover had sufficient funds to employ a man and did employ Walker to do the ranch work which Glover could not do as he formerly did prior to his injury. The ruling of the court in this matter was not such as to require a reversal of the judgment attacked herein.
It is said that the witness, Evans, was not qualified to testify as to the value of defendant’s lands. He stated that they were worth about $12.50 per acre. It is contended that it is not proper to thus prove Berger’s worth as a basis for exemplary damages. But Evans testified he was familiar with the Berger property. The jury could readily, from its own knowledge of land
In the case of Cosgriff Bros. v. Miller,
In Henderson v. Coleman,
“The evidence as to the value of defendant’s sheep was doubtless introduced to show the financial condition of the defendant, as bearing upon the question of exemplary damages. It was held in Cosgriff v. Miller,10 Wyo. 190 , that where exemplary damages are claimed, it is proper to inquire into the financial condition of the defendant. It may be conceded that evidence of the value of a defendant’s property, standing alone, will not establish his worth, for the proрerty may be incumbered, and the party may be otherwise indebted. But it was clearly relevant upon the question. Evidencemay be relevant and admissible as such, though not sufficient in itself to establish the fact to which it relates. ‘A relevant fact will not be rejected because not sufficient in itself to establish the whole or any definite portion of a party’s contention.’ (16 Cyc. 1116.) ‘It need not of itself be sufficient to establish the issue, for the question of its relevancy is a different question from that of its sufficiency alone to support the verdict.’ (1 Elliott on Ev. sec. 149.)”
The claim is advanced by the defendant that the court erred in excluding an offer of proof on behalf of the defendant, that the latter “did not use any more force than he thought was necessary at that time to prevent the assault he thought was going to be committed on him.” Upon objection being made by the plaintiff “that it was objected to as calling for a conclusion of this witness, self-serving and invading the province of the jury,” the objection was sustained and defendant excepted.
40 C.J.S. p. 1005, § 126 uses this language:
“In the majority of jurisdictions, the reasonableness of his belief is not determined from the standpoint of accused, that is to say, it is not to be measured by accused’s standard of reasonableness, or by that of a man of the class to which accused belongs, such as a person of accused’s age, temperament, intelligence, experience, or physical condition. * * *”
See authorities and cases cited, and in State v. Dickens 23 N. M. 26,
“ ‘The standard by which the jury must determine the reasonableness of belief of accused that danger is so apparently imminent that he must act in self-defense is that of an ordinary person of firmness, reason, and prudence, not that such question should be determined from the standpoint of the accused.’ ”
Complaint is also made that the court erred in refusing to give certain instructions. We have examined all of them carefully and upon comparing them with those which the court did give we are inclined to reach the conclusion that the defendant was fully protected in his rights in view of the evidence submitted in this case. To review each of these matters separately would unwarrantably and uselessly extend this case. 5 C.J.S. 1158, 1160, § 1774, states the rule to be:
“Appellant cannot complain of the refusal of instructions where no prejudice resulted from such refusal, as where the instruction is already covered by the charge given * * *”
(see cases cited by text.)
Instruction No. 24 which was refused by the Court reads:
“Although it is your duty to deliberate together with calmness for the purposes of arriving at a common conclusion, if that is possible, I charge you, however, that before you make up a verdict each of you must make up in your own mind, without reference to the other jurors, whether or not the defendant is guilty. In short, when men and women sit as jurors they sit as individuals, so far as their individual verdict is concerned, and the juror must be governed by his or her own conscience and not by the minds and consciences of his or her fellow jurors.”
and error is assigned to the court’s action is so ruling.
In City of Evanston v. Richards,
“ ‘No juror should consent to a verdict which doеs not meet with the approval of his own judgment and conscience after due deliberation with his fellow-jurors, and after fairly considering all the evidence admitted by the court, and the law as given in the instructions of the court.’ ”
Expressing its disapproval of this phraseology, the Supreme Court of Illinois stated:
“Such instructions tend to encourage disagreements of juries and are not approved by this court. The trial court properly struck out that portion of the instruction. Chicago and Eastern Illinois Railroad Co. v. Rains,203 Ill. 417 .”
We are inclined to think that the trial court properly refused this instruction. It contained altogether too much of a suggestion that would lead to a disagreement on the part of the jury. It intimated in effect that each juryman should disregard the views of his fellows no matter how reasonable or cogent these were. Seldom would a jury return a unanimous verdict if the views of a single juryman were to control the verdict as the instruction No. 24 aforesaid intimated should be done. See Gehrig & Chicago & Alton R. Co.
After a careful and painstaking examination of the record before us we do not feel that wе should overturn the jury’s verdict and substitute our judgment for that of the jury as to the amount of damages. We do not perceive in view of all the evidence any sound reason for holding the assessment of damages excessive so as to require a vacation of the verdict on that ground. Especially is this so in view of the depreciation of our currency as it at present prevails.
The defendant by his deliberate and uncalled for use of a deadly weapon subjected the plaintiff to an injury which could easily have proven fatal through loss of blood, and which in effect, obliged him to undergo sev
Affirmed.