Galveston Oil Co. v. Malin

West, Associate Justice. The merits of this case have been very carefully and fully presented to us both in oral argument and printed brief. The first assignment of error to which our attention has been called relates to certain supposed defects in the main charge of the court, in its instructions to the jury, as to the manner in which they should proceed in estimating the damages (if any) sustained by the appellant. The paragraph to which objection is specially made is as follows: “In case you believe, from the evidence, under the charge of the court, that the plaintiff is entitled to recover damages, in estimating such damages you will estimate the damage by the loss which he has sustained. And in estimating the amount of damage you will take into consideration the plaintiff’s lessened ability, if any, to earn money, and the probable duration of such disability, including also his pain and suffering endured by the wounds.” This charge on this point is not quite as clear and satisfactoty as it is desirable it should be, still it furnishes the jury a rule for. their guidance in this matter that cannot be said to be inapplicable to the case. It might have been better for the court to have made the charge somewhat fuller and clearer on this subject, but it fairly enough furnished a reasonably safe guide to the jury in the case under consideration. In the last edition (1880) of Mr. Sedgwick’s valuable work on the [649] Measure of Damages, in cases of this character, it is said (2d vol., pp. 543, 544) in the text, that except in aggravated cases the relief must be confined to compensation. In determining what is a fair and just compensation, it is said in the notes of the editor that the damages should, as far as a money standard can be applied to such case, be such as to compensate the injured party for such loss of time, medical bills, and like expenses, physical pain and also such mental distress as are fairly and reasonably the plain consequences to him of the injury. Mo additional instruction was asked by appellant on this point. In cases of this character, where it is not always easy for the court to furnish, in the hurry of the trial, to the jury a perfect and correct rule as to how they shall estimate the damages, or in fact any rule that will not, to some extent, be subject to criticism,'the safer and better practice is for the party who is. disappointed with the terms in which the district judge has stated to the jury the rule to be followed in estimating the amount of damages sustained, to at once ask him to give the jury, in addition, a carefully drawn instruction, embracing the rule to be followed in estimating the damages, as he believes it to be. See, also, the cases cited in 1 Sutherland on Damages (published in 1882), pp. 158, 159 (notes), as to elements of damage in cases of this character. In his second assignment of error the appellant brings in review the action of the district court in refusing to give the jury the fourth charge asked by the appellant. This instruction was intended to call the attention of the court specially to the alleged failure of the appellee, on the day when the injury was received, to obey the orders of his superior, as to the time when the belt was to be placed by him on the pulley. The charge in question, which the district judge declined to give, was as follows: “ If you believe, from the evidence, that there was greater risk of danger in putting the belt on the pulley when the machinery was being propelled by the full force of the engine than there was when. the engine had not attained its power and the machinery was just beginning to move, or was running slowly; and that plaintiff, on the particular occasion named in his petition, was instructed by defendant, or its superintendent, or its engineer, to put the belt on the pulley when the machinery was first put in motion, or was moving slowly, and that plaintiff did not obey said instruction, but delayed putting on the belt until the engine was exerting its full force upon the machinery, the plaintiff is not entitled to recover, and you will find for the defendant.” [650] This instruction was in the main a correct enough presentation to the jury of one of the issues in the case, and one which it was proper for them to take into careful consideration, in connection with the question of negligence charged upon the appellee. The judge, we are inclined to believe, from a careful examination of the case, refused to give the instruction asked because he was of opinion that the substance of it had been already embraced in his main charge to the jury. We think that the court did not commit any material error in coming to such a conclusion, and therefore declining to give the instruction under consideration. The court, in its charge to the jury, in one paragraph, stated to them that if they believed from the evidence that the appellee’s injuries were the result of his disobedience of the orders of his superior in the manner of putting the belt on the pulley in question, then they should find for appellant. It is true that this portion of the charge did not in so many words call the attention of the jury to the issue as to •appellee’s disobedience of orders, as to the time when he was to place the belt on the pulley. It however called the attention of the jury to the subject of appellee’s disobedience of orders, and stated what the consequences to appellee would be if they found he had been guilty of disobedience of orders as to the manner of putting the belt on the pulley. In another paragraph of the charge, however, the court again calls the attention of the jury to the consequences to appellee if he has been guilty of disobedience of the orders of the superintendent. On this subject the court says, in substance, that it is the duty of the employee to obey the orders of the superintendent in operating the machinery in question. • Again, in another portion of the charge, the court, on this subject, instructs the jury that where an employee is shown to have received injuries in the management of machinery, resulting from his disobedience of the orders of the superintendent, he cannot recover. This part of the charge plainly tells the jury that if they believe the appellee, at the time in question, disobeyed any order whatever of the appellant, given through its proper officer, and was injured as a consequence of such disobedience, he cannot recover. Taking all these matters into consideration, we are not prepared to say that the refusal of the court to give the instruction asked is a sufficient reason for the reversal of the case. The question of fact as to whether the appellee did or did not receive any such order, and whether he did or did not obey it, and the consequences to him of such disobedience, were, on the whole, [651] fairly enough submitted for the consideration of the jury under the •charge of the court. It is also strongly urged, as a ground of reversal, that the verdict was excessive. This was a matter that it was the special province •of the jury to pass upon. The charge of the court submitted that matter fairly enough to them, and we do not feel authorized in disturbing the verdict on this ground. There are other errors assigned. These have also been carefully looked into, but it is not deemed necessary to consider them further. We think there was no serious error committed in the trial of the case in the district court. At least nothing serious enough to require a reversal of the case. The judgment is affirmed. Affirmed. [Opinion delivered February 27, 1884.]