Denver & Rio Grande Railroad v. Scott

Mr. Justice Goddard delivered the opinion of the court. 1. Among other affirmative defenses the defendant pleaded the release set out in the foregoing statement as an accord and satisfaction of the claim sued on. The plaintiff replied that at the time he signed the release “he was mentally incompetent to understand what he was doing and that .the same was procured by misrepresentation and fraud on the part of the claim agent.” Upon this issue the defendant introduced the release, the check by which the consideration mentioned in the release was paid and the receipt for such payment, and the testimony of Mr. Mitchell and Beverly G. Honeyman, stenographer in his office, as to what occurred at the time of the signing of the release, which was to the effect that after discussing the matter of the plaintiff’s injuries for a consider [104] able time the agent offered to pay; and the plaintiff agreed to accept the $150 in full settlement as therein expressed; that Mitchell drew up the release, and after informing him what it was, handed it to plaintiff, who, after apparently reading it carefully, expressed his satisfaction and signed it. ' Plaintiff testifies in substance that he did not distinctly remember what took place in Mr. Mitchell’s office; that he had no recollection of reading and signing the release, but signed what he understood to be a receipt for money paid him for lost time. We think that under the testimony relating to what occurred at this time the only question for the jury to consider in determining whether the release was binding upon the plaintiff was the state of his mind at that time, that is, whether he was mentally incapacitated to make a valid and binding contract. Several witnesses who were relatives and neighbors of plaintiff testified to what they had observed in the appearance and demeanor of plaintiff during his residence at Falcon after the accident and prior to April 30, 1901, the expression of his face and eyes, how he acted and talked, and to all matters which created an impression on their minds as to his mental condition. Over objection they were permitted to state that, in their opinion, his mental condition in the latter part of April was very bad. Dr. Hill, the physician who attended upon plaintiff during this time, after fully stating his physical and mental condition, was asked the following question: “Doctor, I wish you would tell the jury what the fact was, in your judgment; as to whether Mr. Scott, the plaintiff, was or was not able, in the month of April, 1901, to transact business, including such business as the settlement of the claim on account of the damages that he had sustained, if any, by reason of [105] injuries from which he was suffering.” And, over objection, he answered: “I should say he was not.” The rule is settled in this jurisdiction that opinion evidence is not admissible when all the facts upon which such opinion is based are before the jury, and from which the inference to be drawn is one that persons of ordinary intelligence are capable of determining for themselves. — Shapter v. Pillar, 28 Colo. 209, and cases there cited. The weight of authority supports the rule that when it is impossible for a witness to state the facts so as to convey to the minds of the jury all the matters and things that created an impression on his mind his opinion may be given, and that he may give an opinion upon the question of a person’s sanity after stating the facts upon which he bases it; but it is equally well settled that he may not give an opinion as to the degree’ of his mental incapacity or as to whether a person is mentally incapacitated to make a valid and binding contract. The latter involves a question of law as well as of fact, and was the very thing the jury were called upon to determine from all the evidence, under proper instructions of the court.— Estate of Taylor, 92 Cal. 564; Shapter v. Pillar, 28 Colo. 209; Farrell v. Brennan, 32 Mo. 328; Brown v. Mitchell, 88 Tex. 350. "The character of the derangement being made known to the jury by witnesses, it then becomes the privilege and the duty of the jury to determine whether that degree of capacity remains which is essential to the demands of ordinary business affairs. “An opinion may not be given upon the point which it is the duty of the jury to determine.”— Hamrick v. State, 134 Ind. 327. The opinion of the witnesses as to the degree of plaintiff’s mental derangement and regarding his [106] incapacity to execute the release in question should have been excluded. 2. The case was submitted to the jury upon several specific charges of alleged negligence upon the part of the company, some of which, under the evidence, should have been withdrawn from its consideration. Among them was the failure to furnish driver brakes on .the engine. The evidence fails to show that the absence of the driver brakes in any way contributed to the loss of control of the .train; it had provided the engine with water brakes which, the testimony showed, were equally if not more effective in retarding or checking the speed of the engine; or that the company was remiss in the discharge of any duty imposed upon it in failing to equip its engines with them. — Tramway v. Nesbit, 22 Colo. 408; F. C. Ass’n v. Davis, 4 Colo. App. 570; Titus v. Railroad Co., 136 Pa. St. 618; C. & G. W. Ry. Co. v. Armstrong, 62 Ill. App. 228. And furthermore, their absence was so obvious that plaintiff knew or could have known by the most casual observation that they were not provided on that engine. And if the danger in operating the train without them was greater than it otherwise would have been, the plaintiff assumed this additional risk and is not entitled to recover for injuries resulting therefrom. — Wells v. Coe, 9 Colo. 159; Tramway v. Nesbit, supra; B. & C. R. R. Co. v. Liehe, 17 Colo. 280; Stiles v. Ritchie, 8 Colo. App. 393. It is impossible to ascertain what effect this alleged negligence had upon the minds of the jury or how much they were influenced by the fact that the engine was not equipped with driver brakes in reaching the conclusion that the company was negligent in -the premises. In these circumstances it is not incumbent upon us to pass upon the assignments of error based upon other alleged omissions of duty [107] on the part of the company, it being impossible to determine upon which of these specific charges, if upon either, the jury based its finding that the company was in fault. 3. We think the court below was remiss in its duty in not sustaining the motion, for a new trial upon the ground that the verdict was excessive. The record discloses no reason why exemplary damages should be assessed against the defendant, and we can conceive of no reason why such an extraordinary amount was allowed unless it was "given under the influence of passion or prejudice.” Damages for injuries received that are not willfully or maliciously inflicted should be awarded as and for reasonable compensation. We think the language used by the court in U. P. Ry. Co. v. Hause, 1 Wyo. 34, is applicable here: “That the award is not only excessive but unreasonable, and were it not that we do not feel disposed to deal in terms of harshness- we might 'say that the jury either did not comprehend the obligation implied by their oaths or else some demon of malevolence perverted their judgment so as to lead them into a vindictive spirit of persecution." The court below should not have been so astute in finding reasons for throwing upon this court the responsibility of rectifying this wrong, but should have faced its duty and set the verdict aside. For the reasons given, the judgment will be reversed and the cause remanded. Reversed. Chief Justice Gabbert and Mr. Justice Bailey concur.