Abby v. Wood

Root, J. This was an action by plaintiff to recover for the death of a minor child killed by a runaway team which, it was alleged, escaped from defendant by reason of his intoxicated condition. The material facts were about as follows: Plaintiff and wife were farmers, living in Columbia county near Waitsburg. On May 7, 1904, plaintiff’s wife was driving in a buggy along a public road in said county with her child, an infant not quite one year old, when defendant’s team ran into them and killed the child." Defendant had been in Waitsburg during the day and was to some extent intoxicated when he started home. As to the amount of his drinking and the extent of his intoxication there was considerable conflict in the testimony. The defendant claimed that he was not intoxicated, but that his horses, without fault on his part, became unmanageable1, and the wagon running into a washout or chuck-hole, he was thrown to the ground and the team thereupon ran away. As to the manner of his driving and the occasion of his being thrown or falling from his wagoo, there is also a conflict in the testimony. The following. interrogatories were submitted to the jury, and were answered as herein indicated, to wit: “Question: Was the defendant so intoxicated that he could not control his team? Answer: Ho. Q. Was the loss of control of his team by defendant due to his being intoxicated ? A. Yes. Q. Was the loss of control of his team by defendant caused by the hack running into or dropping into a washout or chuck-hole? A. Ho.” The jury returned a general verdict for plaintiff in the sum of $2,160.20. Judgment for said amount was entered in favor of 'plaintiff, from which this appeal is taken. Appellant claims that the evidence does not show any negligence on his part, that it does not show that he had been drinking to excess, or that he was intoxicated, or that his intoxication was responsible for the escape of the horses. He claims that the horses for some reason commenced to run, and that he used every means possible to stop them, and that while [381] endeavoring so to do, the wagon ran into a washout or chuckhole and precipitated him from the wagon, whereupon the team ran away, with the result hereinbefore mentioned. While the evidence as to all of these matters was conflicting, yet we do not find that there was a preponderance in favor of the appellant upon any of these propositions. This being true, and there being a sufficient amount of competent, material evidence, which would, if believed, amply sustain the special finding and verdict, we cannot set the latter aside on account of these matters. Appellant further claims that respondent’s wife wás guilty of contributory negligence in that, when she heard the team coming behind her, she did not look around or malee any attempt to get out of the way. It appears that she ivas driving along in her buggy ini the usual manner*, with the child on her lapl, and had no intimation that the team was running away until it crashed into her buggy. She heard the noise of the approaching team, but nothing is shown to' indicate any reason why she should have supposed it to he a runaway team. Under these circumstances, the court cannot say, as a matter of law, that she was guilty of contributory negligence, even if this would be a defense, which is a question not necessary now to- be considered. It is urged by appellant that the character of the answers to- the special interrogatories and the size of the verdict returned, show that the jury was actuated by passion and prejudice. We are unable to agree with this contention. While at first blush the answers toi the interrogatories might seem a little inconsistent with one another, yet in the light of the issues and evidence involved, we think they are consistent and find support in the evidence. As to the size of the verdict, it is difficult to establish or announce any standard by which the damage to a parent for the loss of his child can be accurately measured. Ho complaint is made by the appellant of the instructions given by the trial court upon this question, and it must be presumed that the jury endeavored to- follow [382] those instruction®, and it would be improper for us to disturb their conclusion unless there was something to show that they were actuated by passion, prejudice, or other improper influence. Nothing of this hind appearing, we are not disr posed to question the amount of the award. TJpon the voir dire one of the jurymen was asked this question: “Do you want to sit om this jury?” Objection was madei, and the juryman was not permitted to answer. This is complained of. We cannot see any merit in the complaint. Exception is also taken to certain remarks made by respondent’s attorney in the presence of the jury. While perhaps not entirely proper, yet, we do not believe that these remarks were susceptible of any injury to appellant’s cause, or that they were made from any improper spirit. Several rulings of the court upon the admission or exclusion of evidence are assigned as error. While it is possible that some of these rulings were not technically correct, yet we can find none that constitute prejudicial error. Exception was taken to the refusal of the court to instruct the jury to return a verdict for appellant. What has been said hereinbefore covers this assignment. Einding no substantial or prejudicial error in the record, the judgment of the trial court is affirmed. Mount, O. J., Cbow, and Eullebton, JJ., concur. Dunbab, J., concurs in the result.