Rogan v. Montana Central Railway Co.

Hunt, J. The first assignment of error is based upon the insufficiency of the evidence to justify the verdict. This is founded upon the argument that the evidence discloses that Rogan accepted the pass given to him as full compensation for damages sustained as well as for services rendered. We cannot take this view of the testimony. Respondent only asked for a reward for performing certain services, the items of which he enumerated in his letter. Evidently the appellant so understood his request, for its superintendent replied by thanking respondent for his ‘ ‘services, ’ ’ saying he had received respondent’s letter requesting a pass “as a recompense for stopping some cars that started down hill from Silver. ’ ’ Respondent thereafter wrote that he would take a pass as compensation for “labor” performed, and it was accordingly issued to him on account of “services rendered” in stopping the runaway train. A careful study of the correspondence between the respondent and appellant satisfies us there is nothing to warrant the court in holding that the lower court erred to appellant’s prejudice in submitting to the jury the question of whether or not the respondent accepted the pass given as a full acquittance of every claim he had against the appellant company. It rather looks as if both parties had construed the claim in like manner, as one for services performed. At all events, the issue was one for the jury to pass upon, and, as there is ample evidence to support their verdict, we cannot disturb it. We therefore pass to the instruction complained of. This was as follows: “If you are satisfied by the preponderance of the evidence that the plaintiff received any of the injuries through the causes specified in the complaint, you will find for the plaintiff for damages in such sum as will compensate him for the injuries, if any, he has sustained, not exceeding, however, the sum of $10,100. The elements entering into damages are the following: (1) Such as will compensate him for the expense, if any, he has paid or incurred for care and medical attendance in consequence of such injuries, not exceeding the sum of $100. (2) If you are satisfied by a preponder [508] anee of the evidence that such injuries have impaired the plaintiff’s power to earn money in the future, such sum as will compensate him for such loss of power. (3) Such reasonable sum as will compensate him on account of the pain and anguish he has suffered by reason of such injuries. (4) Such sum as will compensate him for time lost, if any, through any of said injuries.' The first of these elements is the subject of direct proof, and is to be determined by the jury on the evidence they have before them. The second, third, and fourth elements are, from necessity, left to the sound discretion of the jury under the evidence.” The appellant urges that it was erroneous to leave the amount of compensation for time lost to the ‘ ‘sound discretion of the jury, under the evidence.” The question of what amount of damages may be awarded for time lost in certain cases often becomes very difficult, owing to the nature and extent of the business of the person who seeks a recovery. Take the case before us for an example. Respondent is a ranchman, making his living by selling shade trees, small fruits, vegetables, and dairy products. He lays out the work, oversees his farm and the labor thereof, and otherwise gives his personal attention to such details as go to make his ranch business successful, and which, if not carefully watched, would result in a serious loss to the proprietor or owner. Now, if the person who was injured had been at the time of the injury an employe of respondent, the matter of compensation would be easily inquired into, for the value of his labor m wages as a farm hand would be the standard by which time lost could be readily ascertained. But here the earnings depended largely upon the individual abilities of the respondent, and it was impracticable to accurately measure the value of his services by any general pecuniary scale of remuneration. He offered his own estimate of the value of his time, placing it at SI 00 per month. This testimony was not objected to by appellant on the trial, and went to the jury as evidence under which they were directed to consider the element of damages for lost time, if they found respondent was injured by reason of the acts of [509] appellant company. Of course, the jury were not bound by the amount at which the respondent valued his services, as a necessary and legal measure of damages, and it may be they awarded respondent nothing under this particular head; but, with the evidence before them, it was proper for them to consider it and give it such weight as, “in the exercise of good sense and sound discretion,” they thought it entitled to. (Sedgwick on Damages, § 180; N. J. Express Co. v. Nichols, 33 N. J. Law 434.) The judgment of the jury, under the evidence, was the proper way to arrive at just compensation, if the issues were found for the respondent. (Loewer v. City of Sedalia, 77 Mo. 431; Feinstein v. Jacobs (City Ct. N. Y.) 37 N. Y. Sup. 345; Sutherland on Damages, § 1249.) Nor can we say that the instruction was prejudicial to appellant’s rights because it impliedly told the jury that any compensation allowed to respondent for lost time was not the subject of direct proof, but was, of necessity, left to their sound discretion. The jury were to award such damages, under the evidence, as in their judgment seemed proper. The evidence admitted, which we treat as competent, merely disclosed the somewhat peculiar nature and extent of respondent’s duties, which could not be remunerated by any fixed standard, together with respondent’s estimate or opinion valuation of his own services. Inasmuch as the jury were not bound by this opinion, it follows that their finding must have been based upon certain inferences and common knowledge, rather than upon purely direct evidence, which proved the fact of an exact value of respondent’s time without any inference. As said before, there was no way, under the circumstances of this case,- of exactly measuring the value of respondent’s time lost. It was a fact to be established by proving other facts. Included among these other facts were the nature of his duties, his position, his injuries and the time he lost, and, perhaps, opinions of the value of the services. All such other facts, when proven, tended to establish the fact that respondent’s time was worth something, and, although this latter fact was true, it still did not conclusively establish [510] what amount his services were worth, yet did afford an inference that it was worth a reasonable amount, which was necessarily to be found by the jury in the exercise of their best judgment. Thus, when analyzed, the court did not err in charging that the value of the respondent’s time was to be arrived at by the exercise of the jury’s best judgment, under the evidence before them. Upon the whole case, we find no error, and must affirm the judgment. Affirmed. Pemberton, C. J., and Pigott, J., concur.