243 F. 285 | D. Mont. | 1916
In a trial upon a policy providing for payment amongst other things, for “loss of entire sight of one eye, if irrevocably lost” as the result of and within 90 days from accident, the jury was instructed that, though the injured eye could “distinguish light from darkness, or perceive objects temporarily, for briei inter vals,” yet, if “all useful and practical sight was irrecoverably lost,” it was within the policy and plaintiff was entitled to recover. Verdict for plaintiff, and defendant moves for a new trial, for error in said instruction and for insufficiency of the evidence.
The evidence is too lacking in facts and replete with ambiguous conclusions to support .a finding that plaintiff has lost entire sight of the injured eye. The conclusions repeatedly testified to are that plaintiff-can normally see objects but a “short time,” and then vision fades out “in a very much shorter time,” or “longer,” dependent on his physical condition; that he cannot read, distinguish letters, “for any amount of time”—“not able to use the left eye to any advantage,” and the like. But the facts testified to are he can normally see objects for, a short time, and then, if very tired from the use of both eyes, when he closes the uninjured eye and subjects the injured one to the abnormal strain of excess nerve impulse, it fails of vision in a very short time, defined as 3 to 5 minutes. If not so tired, it may be 10 minutes before it fails; that his eyes are nearly normal for distant vision, and can comfortably be used with lenses for several minutes; that with his old lenses he can read the chart, distant, practically normally, for as much as 5 minutes, and after a few minutes’ rest, “very likely within 10 minutes or 15 minutes,” he can so read again; and that lenses will correct the lack of co-ordination and accommodation.
If, after plaintiff has become very tired from tire use of both eyes, he still has power in the left eye to such extent that he can close the right eye and still see with the left eye thus abnormally burdened, for 3 to 5 minutes before its vision fails; if with lenses he can enjoy normal distant vision for several minutes at a time; if he can read the test chart, distant, for as much as 5 minutes, and then, after resting
The motion for a directed verdict should have been granted. As it is, the only remedy is a new trial. Granted.
Later the suit was settled.