49 F. 343 | 8th Cir. | 1892
This action was brought in the circuit court of the district of Colorado for the purpose of recovering damages for personal injuries alleged to have been caused to plaintiff while she was a
“Be it remembered that on this 27th day of June, 1891, this cause coming on for trial, * * * and it appearing that there was on the docket of said court at that time, ready for trial, and duly assigned for trial on that day, two other suits against the same defendant, to-wit, one by Katherine Jones and one by Winifred Jones, and it appearing that the causes of action arose out of one accident and one alleged negligence on part of the defendant, the defendant insisted that the three cases should be consolidated and tried as one cause, and that, if a verdict was found, there should be but one verdict and one judgment; but, the plaintiff objecting thereto, the court decided to try all three of said causes on one trial, but to take a verdict in each case and render judgment in each of the three causes, to which ruling the defendant, by its attorneys, then and there excepted.”
From this statement it is evident that two propositions were brought to the attention of the court below: (1) Might not the three cases, then pending, .be consolidated and tried together? (2) If tried together, in what form should the jury return their verdict? The argument on behalf of the railway company before this court has been directed to the point that the company was put to a great disadvantage in being compelled to try the three cases at one time and before one jury. Granting all .that is thus urged to be true, the difficulty is that the action of the court below, in directing the cases to be tried before the one jury, was brought about by the railway company itself, and it cannot be heard to say that there was error committed in this particular.
It is attempted to be maintained in argument that the motion of the company for the consolidation of the causes for trial was so connected with its suggestion that only one verdict should be returned, and one judgment be entered, that the refusal of the court to direct a single verdict relieves the company from the responsibility of having insisted that the causes should be tried as one. This contention is inadmissible. By the action of the railway company two questions were presented to the trial court for decision: (1) Shall the causes be heard as one before the same jury? (2) If so, in what form shall the verdict be returned? The court granted the request of the company that the three cases should be heard at the same time before the one jury, and the company is now estopped from questioning the correctness of a ruling which it asked to have made, and for which it is primarily responsible. Having granted the request of the defendant that there should be but one trial for the three causes, the court then decided that the jury should be required to return three verdicts-, and not one, as asked by defendant. It is open to the defendant to aver that the court erred in its decision on this question, but no argument is needed to show that the court decided correctly. If a single verdict had been returned, and a single judgment
The next error assigned that will be noticed is that wherein the defendant company complains that under the evidence in the case the jury should not have been allowed to consider the future suffering of the plaintiffs as an dement of damage. The accident happened on the 4th of September, 1890, and the trial was begun on the 2(>th day of May, 1891, and the evidence showed that at the time of trial the plaintiff was still suffering to some extent from the injuries received; that the probabilities wore that she would ultimately recover, but no testimony was introduced directly upon the point of lime when complete recovery might be expected. In the charge to the jury the court very clearly limited the right, of recovery 1,o such disabilities or injuries as were proven to bo real, complete and entire; and thereupon the bill of exceptions shows that the following proceedings took place:
“Plaintiff's Counsel. 1 noticed the court directs the attention of the jury to the fact of the disabilities, bur said nothing of their suffering. I apprehend these partios are entitled to compensation for suffering.
“The Court. Yes; suffering, it is true, is a proper element for compensation.
"Defendant's Counsel. That cannot go beyond the present time, under this evidence. They cannot allow on account of the future suffering.
“The Court, i am not able to say that, gentlemen. .It was said these ladies would reeover. The time in which they may recover was not stated. Physicians expressed no opinion upon that. Probably they ought to have been asked by counsel their opinion on that subject, but it was not done; and, in the absence of such testimony, you are at liberty to go upon your own judgment in respect to that matter. The plaintiffs can have no rigid of action hereafter for any part of the disability, and you can include in your verdict the disability which may continue from this time onward, in so far as you may believe it may continue, if you find for them.”
To this instruction exception was taken, and it is now argued that it was error to permit the jury to determino whether there was a probability of future disability or suffering, and award damages therefor. As already stated, the evidence showed that ihe disabilities caused by the accident had lasted up to the dato of trial; and, still existing, it was the necessary inference that they would continue, with tho attendant suffering, for some time in the future; and for such futuro disability and suffering the plaintiff was entitled to recover. The objection made by
Exception was also taken to the refusal of the court to give certain instructions asked by defendant; but, with the exception of the fourth, which covers in another form the point just discussed, no special reliance is placed in the argument upon the refusal to give the second and third requests of defendant, doubtless for the reason that the charge of the court fully covered the points made in these requests. In the instructions given the jury, the trial court very carefully and fully guarded the interests of the defendant in all matters pertaining to the injuries complained of, and to the extent of the recovery therefor; and the defendant is wholly without ground for just exception to any instruction, given or not given, upon these matters.
Finding no error in the record, the judgment below is affirmed, at the cost of plaintiff in error.