46 Cal. 409 | Cal. | 1873
The action was to recover damages for an injury sustained by the plaintiff while working on a hoisting apparatus, called a cage, in the store of the defendants. The plaintiff recovered judgment, and the appeal is from the judgment and from an order denying a motion for new trial. Whether the plaintiff knew of the defect which caused the cage to fall, and whether his carelessness contributed in any way to produce the injury, were questions properly submitted to the jury, and we cannot upon this ground disturb the verdict, based as it was upon conflicting evidence. The testimony that the cage had fallen before was offered to show knowledge on the part of the defendants of the defect which caused it to fall, and was properly received. The liability of the defendants depended upon three facts : First, that the method of attaching' the hoisting rope to the cage was defective and unsafe, and the injury was caused to the plaintiff by the defect; second, that the defendants knew, or ought to have known, of the defect; and third, that the plaintiff did not know of it, and had not equal means of knowledge. That the cage had fallen before from a similar cause was an appropriate, if not the only means of proving that the defendants knew it might at any time fall again. The cases cited for the appellants are not in point. In those cases the testimony was offered, not to prove a knowledge of the defect, but the defect itself.
The Court instructed the jury that the damages were left entirely to their judgment and discretion, so that they be
The jury should have "been told that in estimating the damages they might consider what, before the injury complained of, was the health and physical ability of the plaintiff to maintain himself and family, if he had one, as compared with his condition in those particulars afterwards; his loss of time, and how far the injury was permanent in its character and results, as well as the physical and mental suffering he had sustained by reason of the injury, and that they should allow such sum for damages as in their opinion would fairly and justly compensate him for all the loss and injury sustained. This was the extent to which the judgment and discretion of the jury could lawfully go. The instruction, as given, went further than this, and, we think, was calculated to mislead the jury. It in effect told them that they might award the plaintiff any sum within that named in the complaint, which, in their discretion, they should think he ought to receive, without limiting U>to ,a just compensation. Moreover, they were allowed to take into consideration “his condition in life, and so forth.” It is not very apparent what was meant by the words “and so forth,” and they would seem to be objectionable on that account; but, however this may be, it is clear that by the words ‘‘condition in life ” was meant, among other things, the plaintiff’s pecuniary condition, as rich or poor. In Shea v. Protrero and Bay View Railroad Company, 44 Cal. 414, the jury were told that they might take into consideration the fact, if it was proven to their satisfaction, that the plaintiff “is a man who has to depend upon his daily labor for a living ;” and this was held to be error upon the ground that it made the damages dependent upon the wealth or poverty of
Judgment and order reversed and cause remanded for'a new trial.
