Lead Opinion
Action by appellee against appellant to recover damages for personal injuries alleged to have been received by appellee on September 1, 1923, while riding as a passenger in a street car alleged to have been owned and operated by appellant. Appellee alleged in her complaint that appellant was negligent in three particulars: (1) That the motorman and conductor in charge of appellant's one-man, pay-as-you-enter, car, was inexperienced and incompetent in the operation of passenger cars, which fact it was alleged appellant well knew; (2) that appellant permitted its passenger car to be operated when out of repair; that it was out of repair, in this, that it would start suddenly with a jerk when operated in the usual way, the particular defect being unknown to appellee, but alleged to have been known to appellant prior to placing the car in service on the date of the alleged injury; and (3) that the person in charge of said car for and on behalf of appellant was negligent in starting said car with an unusual and extraordinary jerk and in failing to warn appellee of the danger therefrom, and in attempting to start said car before appellee had been seated.
Appellee points out that her complaint, in addition to the above alleged acts of negligence, contains the general charge that, before appellee had an opportunity of taking a step in the direction of that part of the car in which the seats were located, the conductor thereon, without giving any warning to appellee of his intention so to do, and in disregard of his duties and obligations to *Page 205 her and other passengers, carelessly and negligently caused said street car to be started forward suddenly and with an unusual and extraordinary jerk. But, as it seems to us, the above three specifications sufficiently set forth the negligence complained of.
Appellee further alleged that, as a result of the negligence of appellant, she was thrown violently to the floor of the car and injured in her back, spine and other portions of her body. Damages were sought in the sum of $15,000.
There was an answer in general denial. The issues were submitted to a jury for trial, which, in the first instance, returned a verdict as follows (omitting caption and signature): "We, the jury, find for the plaintiff and assess her damages at thirty-eight (3800) dollars."
Following the reading of the verdict, the court inquired of the jurors whether or not that was their verdict, and the foreman made reply as follows: "Yes, your honor." Whereupon, the court inquired of the parties whether or not they desired to poll the jury and they respectively replied that they did not. Thereafter the court said to the jury, "You are now discharged."
After all the members of the jury but one had left the jury box and the courtroom, the court, upon the request of appellee, and over the objection of appellant, caused the bailiff to resummon the jury and place them in the jury box, and, upon all the jury having reassembled in the jury box, the court, at the request of appellee, and over the objection and exception of appellant, gave to the jury the following written instruction, to wit: "Your attention is called to the fact that in your verdict appears the written words `thirty eight' while in figures is written 3800. You will retire to your jury room, reconsider your verdict and return the same into court. I herewith hand you new forms of verdict, one to be used *Page 206 in case you find for the plaintiff and one to be used in case you find for the defendant."
The jury then retired under the custody of the bailiff sworn at the inception of the trial, and, after deliberation, again returned into open court a verdict, which, omitting caption and signature, reads as follows: "We, the jury, find for the plaintiff and assess her damages at thirty-eight hundred dollars."
Subsequently, appellee filed her verified motion to correct and reform the verdict with supporting affidavits of the clerk and jurors. Appellant filed its motion for a venire de novo, and thereafter filed its motion and causes for a new trial. The court sustained appellee's motion to correct and reform the verdict of the jury so as to read as follows: "We, the jury, find for the plaintiff and assess her damages at thirty-eight hundred ($3800.00) dollars."
The court overruled appellant's motion for a venire de novo, also its motion for a new trial. Judgment was rendered on the verdict as corrected and reformed, in favor of appellee and against appellant for $3,800, from which this appeal, appellant presenting that the court erred in overruling appellant's objection to the giving to the jury, after the first verdict had been received and the jury discharged, the instruction tendered by appellee, directing the attention of the jury to the discrepancy in the verdict between the written words "thirty-eight" and the figures "3800," and directing the jury to retire and reconsider their verdict and return the same into court; in sustaining appellee's motion to correct and reform the verdict and in ordering that said verdict be corrected and reformed; in overruling appellant's motion for a venire denovo; in overruling appellant's motion for a new trial, under which causes therefor, specifically relied upon, are hereinafter considered; and, in entering judgment in favor of appellee and against appellant. *Page 207
It is appellant's contention that the court erred in overruling its objection to giving to the jury, after the verdict was first returned and the jury discharged, the instruction tendered by appellee and directing the attention of the jury to the discrepancy in the verdict between the written words "thirty-eight" and the figures "3800," and directing the jury to retire and reconsider its verdict. But we do not see how the action of the court so complained of deprived appellant of any substantial right or in any way operated to its prejudice. Even if it may be said that such action of the court was extra judicial, it furnished to the court reliable and credible record evidence of the intention of the jurors which the court had a right to consider in construing the verdict, which was ambiguous on its face. As was said in Lake Erie, etc., R. Co. v.Griswold (1920),
The McGlone case is approved and followed in Town of Hobart
v. Casbon (1924),
It appears by the record that the second verdict, returned by the jury after it had been discharged and reassembled, was not relied upon as a basis for the judgment herein, but that 1. the judgment was upon the first verdict as construed and perfected on appellee's motion. Certainly, appellant has no occasion to complain that the court, in construing and perfecting the verdict, had, not only the affidavits of the jurors, but the further assurance of the jurors when reassembled, as to their attention. Appellant's objection to the court's action in instructing the jury as to the discrepancy in the verdict was properly overruled, and the court did not err in sustaining appellee's motion to correct and reform the verdict, nor in overruling appellant's motion for a venire de novo.
Sixty-four instructions, including those given by the court on its own motion, were before the court for its consideration: Of this number, 34 instructions were tendered by appellant, 24 of which were given by the court and 10 refused. The action of the court in giving or refusing to give respectively a large number of the instructions *Page 209 before it is challenged by appellant, but, to consider the separate challenge of the action of the court as to each instruction so given or refused would extend this opinion to an undue length. We shall, therefore, consider only such contentions and errors as to the instructions as we deem to be substantial.
The court, by its instruction No. 5, undertook to define "burden of proof," but we must agree with appellant that the court wholly failed in its effort. We do not see, however, that appellant was harmed by the instruction. As a definition of "burden of proof," it was simply meaningless. Appellant contends that the instruction contradicts instruction No. 19 given by the court on its own motion. We do not so understand. That instruction states that the phrase "burden of proof" means that the party on whom such burden rests shall establish the truth of the particular fact or facts involved by a preponderance of all the evidence. Instruction No. 5 has no such meaning as this nor contrary thereto. As to the subject-matter of "burden of proof," it was simply without force.
Instruction No. 14 given by the court on its own motion was on the subject of proximate cause, but in its subject-matter refers to an intervening agency of some third person as affecting 2. proximate cause, and there is no evidence whatever as to any person as an intervening agency and the instruction was, therefore, outside the issue. The latter part of the instruction informed the jury that, if the injury would not have occurred without the doing of the original wrongful act, such act does not cease to be the proximate cause of such injury merely because some other person contributed to or aided such original wrong. For the reasons above, this part of the instruction is also without the issue. There were no parties involved in this accident *Page 210 other than appellant, by its motorman, and appellee, but there is no evidence whatever that appellee in any way contributed to the injury which she suffered, and the jury could not, therefore, have inferred that the third person referred to in the instruction as an intervening agency was appellee. We criticise the instruction as being outside the issue and unauthorized by any evidence, and it should not have been given, but we do not see that appellant was harmed thereby.
Instruction No. 20 told the jury that, if it found for appellee, it could assess in her favor such damages, within the amount claimed, as she is shown by the evidence, and under 3. the law as given by the court in these instructions, to have sustained, and which would be a compensation to her for any loss or injury occasioned which was the result of appellant's conduct. It is to be observed that this instruction, standing alone and without its restrictive phrase, and without being construed along with the other instructions, would have authorized the jury to consider the entire evidence in determining the amount of damages that she should recover. This evidence includes the fact that appellee's husband was deceased, and that, at the time, she was a widow; that her family consisted of five children, including twins; that her husband had been a truant officer in the city for a long period of time; that, at the time of her injury, she was keeping roomers, and that she had worked as chambermaid at a hotel because she was in need of money; that, before the death of her husband, she did little, if any, work because she did not have to, but, after his death, she was compelled to work. There is no contention that these facts were improperly admitted as evidence, and some of them were developed by appellant in its cross-examination of appellee and her witnesses, and some by appellee in the due course of the evidence. But, while such facts were properly in evidence, it does *Page 211
not follow that they were proper elements for the jury to consider in their assessment of the amount of damages. In Cityof Delphi v. Lowery, Admx. (1881),
In Broadstreet v. Hall (1904),
In Stewart v. Swartz (1914),
It seems clear to us that, under these authorities, the instruction, without restriction and without being construed along with other instructions, would have been error; but 4. it therein appears that the court told the jury thereby that if it found for appellee, it could assess in her favor such damages, within the amount claimed, as she is shown by the evidence and under the law as given by the court in theseinstructions, to have sustained. It thus appears that the jury was told to look to other instructions for the purpose of determining the law, by which to fix the amount of damages to be assessed. By instruction No. 23, tendered by appellant and given by the court, the jury was informed that, in determining the damages, it could consider only such damages as flowed from and were the immediate result of the acts complained of. In the same instruction, the jury was also told that it had no right to indulge in conjectures or speculations not supported by the evidence, and that it should not permit any consideration of sympathy for appellee to influence its verdict. *Page 213 By instruction No. 25, the jury was told that it could not find any damages that had not been alleged and proved by a preponderance of the evidence; that it would not be permitted to assess damages at a larger sum than appellee had actually sustained; and that the burden was upon appellee to prove each element of damage claimed by her. By instruction No. 32, tendered by appellant and given by the court, the jury was told that, if appellant was liable at all in this action, it was liable only to the extent that appellee had proved by a preponderance of the evidence that her alleged injuries were due to the negligent acts of appellant. By instruction No. 35, tendered by appellant and given by the court, the jury was told that the fact on the one hand that appellee was a woman and a widow, and, on the other hand, appellant was a corporation, should not be considered by the jury in any manner as affecting the determination of the issue involved. These instructions, each and all of them, were referred to by the court as the law by which the jury was to be controlled, and with instruction No. 20 so environed, restricted and qualified, there was no error in giving it.
Appellee's instruction No. 1, given by the court, instructed the jury that, although a common carrier of passengers is not an insurer of their safety, it must exercise care consistent 5. with its mode of conveyance and the practical prosecution of its business for the safety and protection of its passengers, and that any violation of this duty to a passenger on the part of the carrier is negligence, and if such negligence is the direct or proximate cause of an injury to a passenger, who is herself free from negligence, the carrier is liable. This instruction was taken almost verbatim from the cases ofIndiana Union Traction Co. v. Keiter (1910),
Appellant, in criticising divers instructions given by the court, and which we deem it unnecessary to set out, states the general rule of law that the various issues and questions 6. depending upon the evidence which contains matters competent for one purpose, but not competent for another, must be determined by a consideration, not of all the facts and evidence and circumstances disclosed, but only of that portion thereof germane to the particular issue. If it may be said that instructions given by the court were erroneous in that they directed a consideration of all the facts and evidence and circumstances, instead of such portions thereof as were germane to the particular issue then involved, still appellant may not be heard to complain of such error, for it tendered instructions impressed with the same defect. A striking example is instruction No. 13 tendered by appellant. That instruction charged the jury on the question of contributory negligence to consider "all the evidence in the case, whether introduced by the plaintiff or the defendant, and all the facts and circumstances shown by the evidence, and if the jury *Page 215
then, from a consideration of all the evidence, and all the facts and circumstances in evidence, found that the preponderance thereof shows that the plaintiff was guilty of negligence contributing to her injury, then your verdict should be for the defendant." Thus, it appears that appellant, by this instruction — and there are others tendered by it — embodied the same principle as that to which it so vigorously objects when appearing in instructions given by the court. It is true that this particular instruction was refused by the court, but it is the rule of law that error is invited where a party prepares and tenders an improper instruction with the request that it be given, and, on appeal, he cannot be heard to complain of the court's action in giving an instruction containing the same principle as the instruction tendered even though the instruction tendered was refused. Cleveland, etc., R. Co. v. Dixon
(1911),
Appellant's challenge of the action of the court as to other instructions given, or tendered and refused, does not present such semblance of harmful error as to justify consideration herein.
Appellee called as her witness Dr. McClelland, and, after having him identify certain radiographs, which he had taken of appellee's body, asked him to state the condition of the 7. pelvic bones of appellee as he determined them to be from the radiograph. Over appellant's objection, the witness was permitted to answer fully this question and subsequent questions with reference thereto. It is appellant's contention that the reception of this evidence over its objection and exception, relating as it does to the subject of injury and damage, is reversible error, for the reason that it violates *Page 216
the general rule requiring the production of the best evidence; because it violates the particular rule of evidence requiring a witness, even an expert, in giving an opinion, either directly or hypothetically, to base the same upon facts of which the record must contain some evidence in order that the jury may have an opportunity to test the correctness of the witness' conclusions; that the party against whom such evidence is offered has the right to require the introduction of such documents or instruments in evidence for the purpose of having an intelligent basis for cross-examination, and for the further purpose, where the matters are involved in the realm of expert testimony, of submitting such documents or instruments to such experts as the party may choose to call. Appellant cites, to sustain its contention, Elzig v. Bales (1907),
Appellant urges that the evidence is insufficient to sustain the verdict and that it is, therefore, contrary to law, but there was evidence that appellee was injured in the manner as alleged in her complaint, and, while there was evidence contradictory thereto, it is not the province of this court to weigh the evidence.
We cannot say, under all the evidence in this case, that the damages were excessive.
Affirmed.
Addendum
ON PETITION FOR REHEARING. Appellant is so insistent that the court committed reversible error in the admission of the evidence of Dr. McClelland that we conclude to give reasons why the admission of such evidence, if error, was not reversible error.
It appears by the evidence that the radiographs in question were not susceptible of being understood by one not skilled in their interpretation, and, without explanation, would be 8, 9. unintelligible to the jury. Under such conditions, the best evidence was not the plates themselves, but the testimony of one skilled in their interpretation. Marion v.Coon Construction Co. (1915),
Appellant very forcefully challenges our statement in the original opinion to the effect that instructions 1 and 6, tendered by appellee and given by the court were not 10. erroneous but were incomplete as to the degree of care required. We have given these instructions further consideration, and have to say that we conclude that we were not justified in making such statements concerning them, and that neither of the instructions was erroneous nor was it incomplete. Instruction No. 1 stated that a common carrier must exercise careconsistent with the mode of its conveyance and the practical prosecution of its business for the safety and protection of its passengers. Instruction No. 6 states that a passenger has the right to assume that a carrier will exercise care consistent
with the mode of its conveyance *Page 219
and the practical prosecution of its business for the safety and protection of its passengers. Appellant again calls attention to the case of Union Traction Co. v. Berry, Admr. (1919),
Petition for rehearing denied. *Page 220