75 F. 102 | 9th Cir. | 1896
This was an action for damages. The plaintiff in error was defendant in the court below. It built and operated a line of telegraph from the town of Elko to the town of Tuscarora, in Elko county, state of Nevada, which line crossed a public road of that county, called the “Old Grand Prize Road.” On the occasion of the accident which was the ground of the action, the defendant in error, who was plaintiff in the court below, was driving along the highway, when his horses struck the wire of the telegraph company, which had fallen from its proper place on the poles to within about two feet of the ground, and, becoming frightened, suddenly turned and ran, thereby throwing the plaintiff in the suit from the vehicle in which he was riding, by which fall the plaintiff received a compound, comminuted fracture of the ankle bones of the left leg. His left foot was doubled over, both bones protruding through the flesh, and through his leather shoe into the ground, and were denuded of the periosteum for a space of 4£ inches. The base bone
lint two points are pressed upon our attention by counsel for the plaintiff in error as grounds for a reversal of the judgment. One relates to the failure of the court below to “give to the consideration of the jury any rule of notice as to the plaintiff in error having had reasonable time to observe or notice the condition of its line, or being put upon inquiry as to any defect therein, or that the same was out of repair,” and to the alleged failure of the court “to define negligence, reasonable care, or reasonable diligence”; and the other is the claim that the damages awarded were excessive, and should not, therefore, he permitted to stand.
The court below instructed the jury, among other things, as follows :
“A telegraph company is bound to use ordinary care and reasonable diligence to place and keep Its telegraph line and wires in a safe condition, where it extends over or along (he public, traveled road. If you believe from the evidence that the defendant failed to perform such duty, and that by reason of its negligence, or the negligence, of its servants or agents, in that regard, its line of wire was suffered to ha.ng over the road so low at the point where it crosses the old Grand Brize road, as has been testified to by the witnesses, as to obstruct the public 1 ravel upon such road, and to be in such a dangerous condition that by reason thereof the plaintiff, while exercising reasonable care on ids part, received the injury complained of, then the defendant is liable, and you may find a verdict for the plaintiff. If you should find from the evidence that the defendant has not been guilty of any negligence, as I have explained To you, it will be your duty to find a verdict in favor of the defendant. But If you should find from the evidence that the defendant was guilty of negligence, and that by reason of such negligence the plaintiff was injured, then you must consider the question whether or not the plaintiff was guilty of any negligence which contributed to the injury which he received.”
We see no just ground to bold excessive the amount of damages awarded by tbe jury, and with which award tbe experienced and able judge before whom tbe case was tried refused to interfere. Damages, in such a case, said tbe supreme court in The City of Panama, 101 U. S. 453-464—
“Must depend very much upon the facts and ^circumstances proved at the trial. When the suit is brought by the party for personal injuries, there cannot be any fixed measure of compensation for the pain and anguish of body and mind, nor for the permanent injury to health and constitution, but the result must be left to turn mainly upon the good sense and deliberate judgment of the tribunal assigned by law to ascertain what is a just compensation for the injuries inflicted.”
The court below, in declining to set aside tbe verdict on tbe ground that tbe damages awarded were excessive, said:
“The amount allowed by the jury in the present ease was large, but the injury was severe, and the bodily pain intense, and continued for a long period of time. The plaintiff was present in court. The condition of his foot was plainly to he seen, and, with the testimony of his physician, the nature and extent of the injury and of the bodily pain suffered by the plaintiff, was clearly and intelligently presented to the jury. The injury and the pain were real. No attempt was made at the trial to magnify or exaggerate either the injury or the pain, as is sometimes, in bad taste, attempted to be done in cases of this character. No appeal was made to the jurors to arouse either their passions, prejudices, or sympathy. There was nothing at the trial, in the acts or conduct of the jury, or of any juror, to indicate in any manner that they were influenced or controlled by any such feeling.”
Judgment affirmed.