Albright v. Keats Auto Co.

Mr. Justice McCamant delivered the opinion of the court. Most of the contentions of defendants in this case are concluded by the opinion in Houston v. Keats Auto [136] Company. For the reasons therein stated the court did not err in denying defendants motions for a non-suit and for a directed verdict. The instructions requested and given in this case are substantially identical with those in the Houston case and our conclusions with reference to them are as stated in the opinion in that case. It is insisted that the court erred in giving the following instruction: “If, after careful consideration and comparison of all the evidence in this case, Gentlemen of the Jury, you come to the conclusion that the plaintiff should recover then it will be your duty to determine the amount to which she would be entitled. If you reach this point, and find for the plaintiff, then you will allow her such sum as will fairly and reasonably compensate her for such injuries as you find she may have suffered by reason of this accident, taking into account her physical suffering-, if any, her mental anguish, if any, and the necessary expenses that she may have had resulting from this accident, and also loss of time, if any. In arriving- at this amount, if you have occasion to do so, you will, of course, find such amount as will be justified by the evidence in this case, laying aside any question of sympathy for the plaintiff or any question of prejudice against the defendants. ’ ’ 1, 2. It is true, as contended, that the quantum of damages is a fact to be established by the testimony and it cannot be left to surmise or speculation: Rugenstein v. Ottenheimer, 70 Or. 600, 606, 607 (140 Pac. 747). But we do not think that the above charge, fairly construed, permitted the jury to speculate on the subject of plaintiff’s damages. The words, “may have suffered,” are perhaps unfortunate but we think it is obvious that the language was chosen with a view to withholding any expression of opinion as to whether plaintiff had suffered injuries. After using these [137] words the court directed the attention of the jury to the physical and mental suffering of plaintiff, her loss of time and expenses, qualifying each reference by the words “if any.” There was testimony on each of these subjects. The injuries of plaintiff were clearly ‘defined by the testimony; there was no suggestion by any witness that she was liable by reason of the accident to uncertain physical ills in the future. The court gaye the jury an express direction to “find such amount as will be justified by the evidence in this case.” In conclusion the court instructed the jury to disregard sympathy for plaintiff or prejudice against defendants. We cannot think that the jury was misled by this instruction. 3. It is argued in the brief that there was error in the admission of certain evidence of the witness Bales. No such error is assigned and the question is therefore not before us: Redsecker v. Wade, 69 Or. 153, 159 (134 Pac. 5, 138 Pac. 485, Ann. Cas. 1916A, 269); Dundas v. Grand View Land Co., 79 Or. 379, 380 (155 Pac. 365). 4. Error is assigned on the denial of defendant’s motion for a new trial. Under this assignment it is contended that the damages awarded are excessive and that for this reason the court erred in denying the motion. We find no motion for a new trial in the record and therefore cannot consider the alleged error: Simon v. Durham, 10 Or. 52, 55; Landswick v. Lane, 49 Or. 408, 412 (90 Pac. 490); Williamson v. Roberts, 70 Or. 126, 132 (138 Pac. 840, 140 Pac. 633). 5. We may add that it has been repeatedly held that this court will not review the discretion of the Circuit Court in refusing to grant a new trial on the ground that the damages are excessive: Nelson v. Oregon Railway & Navigation Co., 13 Or. 141 (9 Pac. 321); [138] McQuaid v. Portland & Vancouver R. R. Co., 19 Or. 535 (25 Pac. 26); Kumli v. Southern Pacific Co., 21 Or. 505, 512 (28 Pac. 637); Coos Bay Co. v. Endicott, 34 Or. 573, 578 (57 Pac. 61); Sorenson v. Oregon Power Co., 47 Or. 24, 34 (82 Pac. 10); Lindsay v. Grande Ronde Lumber Co., 48 Or. 430, 439 (87 Pac. 145). The judgment is affirmed. Affirmed. Mr. Chief Justice McBride, Mr. Justice Moore and Mr. Justice Bean concur.