120 Ind. 397 | Ind. | 1889
This is an action by the appellee against the appellant to recover damages.
The complaint charges that the plaintiff was a stock dealer, and on the 1st day of December, 1886, he shipped on the defendant’s road a car of stock at Sumner, Illinois, consigned to Cincinnati, Ohio, and received from the agent of the defendant a shipping bill, which entitled him to free transportation over the defendant’s road to Cincinnati, to take care
The action was commenced in the Knox Circuit Court, and by change of venue sent to the Sullivan Circuit Court, where a trial was had, resulting in a verdict for the plaintiff' for five thousand five hundred dollars.
The defendant filed a motion for a new trial, which was overruled, and exceptions taken, and judgment rendered for the plaintiff on the verdict.
The appellant assigns as error the overruling of a motion to strike out questions and answers in depositions. The ruling of the court on the motion to strike out questions and answers in the depositions was not assigned as a cause for a new trial, and the question is not properly before this court for a review of the ruling of the trial court. Jeffersonville, etc., R. R. Co. v. Riley, 39 Ind. 568; National Bank and Loan Co. v. Dunn, 106 Ind. 110; Hatton v. Jones, 78 Ind. 466.
There is but one other question discussed by counsel in their brief, and that'is as to the amount of damages assessed. It is claimed that the damages are excessive, and that the verdict ought to be set aside and a new trial granted.
This question is properly presented in the motion for a new trial.
The appellate court will not reverse a case on the ground of excessive damages unless they appear at first blush to be outrageous and excessive. Town of Westerville v. Freeman, 66 Ind. 255; Carthage Turnpike Co. v. Andrews, 102 Ind. 138.
There was evidence in this case tending to prove that the
• We can not say that the damages assessed appear at first blush to' be outrageous or excessive. The trial occurred some four months after the injury, and the appellee could not then use his arm.
It is very clear from the evidence that the appellee will suffer from the injury and be deprived of the use of his arm for a considerable length of time at least, and a very strong probability that the injury is a permanent one, which will deprive him of the proper use of his arm during his whole life, and cause him some suffering.
There is some evidence showing that the appellee used intoxicating liquors, but not to excess; also, that he was not confined to his house constantly but a few days, and that he had his arm and shoulder bandaged, and walked about, being more comfortable by doing so than while remaining in the house.
It is evident that the jury were of the opinion that the use of intoxicants and the moving about did not aggravate the injury or retard it from healing.
Interrogatories were submitted for the jury to answer, and it is urged that they answered that they did not know whether the injury wás a permanent one or not. This is a fact the jury might have been required to answer definitely, and as they did not we can not give any consideration to the answer, but are compelled to look to the evidence, as we have, in determining the extent of the injury and its permanency.
Interrogatories were also submitted requiring the jury to itemize the damages allowed, stating how much they allowed for humiliation and mortification, how much for mental suffering, how much for physicial suffering, and so on, with the
This was not proper practice. Damages were assessable for all the injuries sustained, and the jury can not be required to itemize and assess a separate amount for each element entering into and making up the gross sum allowed. As well it might be required of the plaintiff in his complaint to set forth the particulars of his claim for damages, alleging what amount of damage he sustained by reason of mental suffering, and what on account of physicial suffering. This certainly could not be required in a pleading, neither can it be required of a jury to assess the damage for each separately in a case of tort. A rule may be applicable in actions on contracts and not in actions for tort. In an action on an account a bill of particulars may be required, but not in an action for damages for an assault and battery. We can not,, therefore, consider the separate items stated by the jury in their answers to interrogatories, but must determine whether the gross sum assessed in the general verdict is excessive.
The judgment should not be reversed by reason of the damages assessed being excessive.
Judgment affirmed, with costs.