87 Kan. 322 | Kan. | 1912
The opinion of the court was delivered by
This action is to recover for injuries to the appellant while a passenger in the defendant’s street car. The verdict and judgment were for the defendant. Errors are alleged in the instructions, for which a new trial is asked.
The petition alleges negligence in the construction and maintenance of the track with a “sharp curve or
Evidence was offered tending to prove that the car was running at about eighteen or twenty miles an hour; that it lurched at the curve; and that appellant, a passenger thereon, was thereby thrown off and injured as alleged. On the part of the appellee evidence was offered tending to prove that the appellant was intoxicated when he boarded the car, and was requested to go inside, but remained upon the platform until he fell off because of his condition, and that his injuries were caused by the use of intoxicants.
At the request of the appellee the court gave the following instruction touching this matter:
“The jury are instructed that if they believe from the evidence that plaintiff’s condition was partly caused by the negligence of defendant and partly caused by plaintiff’s voluntary and excessive use of intoxicating liquors, and you can not separate the two, then the plaintiff 'can not recover in this action, because it is npt only necessary in an action such as the one at bar, for the plaintiff to show that he is entitled to recover from the defendant, but he must also show what the amount of such recovery should be, and when the testimony discloses such a situation that the jury can not determine how much of any damage sustained is due to the defendant and how much to the plaintiff, then plaintiff has failed to present such a case as makes recovery possible.”
In an action for damages for malpractice, where it was claimed that the pain and suffering complained of were in part the result of an ailment for which the defendant was not responsible, an instruction was given as follows:
“In such case it will be necessary, as best you may, from the evidence to distinguish the pain, suffering, and inj uries or ill health of the plaintiff, if any,, chargeable to the fault of the defendant, from those chargeable to her condition when the defendant was called to treat her, and also those, if any such there are, justly chargeable to the treatment of other physicians, or to any other cause.” (67 Wis. 510.)
In approving this instruction the court said:
“The difficulty suggested by counsel in assessing damages under the rule laid down by the court is rather imaginary than real, ¿s in all other actions to recover unliquidated damages the jury must assess the same according to their best judgment, with due regard to all the circumstances of the case proved on the trial affecting the amount of damages.” (Gates v. Fleischer, 67 Wis. 504, 510, 30 N. W. 674; 3 Sutherland on Damages, 2d ed., § 1244, and note.)
The instruction in this case upon which comment has been made can not be interpreted to refer to contributory negligence — that subject was fully treated in other instructions — but related, as the language fairly shows and the jury must have understood, to damages partly caused by the use of intoxicants, even if such use or intoxication did not contribute to the fall. It is hardly necessary to say that a person may be intoxicated and yet such intoxication may not contribute to cause an injury he receives while in that condition. Whether it did or not is a fact to be determined in any particular case.
It appears from the counter abstract that the appellant stated during the trial that if he was under the
Other .instructions are criticized because they assumed the fact of intoxication, which was in dispute, but in one instruction at least the jury were told that it was a question of fact for them to decide whether the plaintiff was intoxicated.
The stenographer’s notes were destroyed in the burning of the court house, and the transcript of the evidence was made up under the-direction of a judge succeeding the one who presided at the trial. This situation prevented that absolute certainty-concerning the evidence ordinarily attainable. The judge certifies that material evidence was given at the trial not included in the transcript, and from this fact it is argued that alleged errors in the instructions can not be considered. But from the instructions (which were preserved) and the statements of the parties, it plainly appears that the intoxication of appellant was one of the principal matters in controversy before the jury. It is treated at length in several instructions and must be considered material. The omitted evidence on this subject it appears was only cumulative, and that given upon other matters, if any, would not affect the questions we have considered. No other waiver is suggested than the statement of the appellant, upon which comment has already been made.
Another- matter discussed in the briefs is that the jury, before returning a verdict, requested the court to inform them what was said in the instruction about gates upon the car, to which the court answered that gates had not been mentioned, and the question of gates had nothing.to do with their determination of
An instruction to the effect that there could be no recovery because of any diminished earning powers of the appellant was based, it seems,- in part upon the supposed lack of an allegation in the petition presenting that element of damages. The petition, however, is deemed sufficient in this respect to permit the admission and consideration of evidence on that subject.
Because the instructions relating to damages which have been examined and commented upon were misleading and erroneous to a degree prejudicial to the appellant, the judgment is reversed and the cause remanded for a new trial.