Hall v. Cedar Rapids & Marion City Railway Co.

Deemer, J. 1 2 The instruction relating to the measure of plaintiff’s recovery in the event the jury found in her favor was as follows: “In estimating the damages, if any you find, you will allow plaintiff for any physical suffering and pain and mental anguish, if any, she has suffered and shown in evidence, or which she may in the future suffer, if any, in consequence of the alleged injury, and a reasonable allowance for any physician’s bills, if any, she has expended in consequence of said injury, and shown in evidence, but not to exceed the amount claimed in plaintiff’s petition.” This instruction was clearly erroneous, in that it permitted the jury to enter into the realm of speculation regarding plaintiff’s future suffering. Such a charge has frequently been disapproved by this court. Fry v. Railway Co., 45 Iowa, 417; Reed v. Railroad Co., 57 Iowa, 25; Stafford v. City of Oskaloosa, 57 Iowa, 751; Ford v. City of Des Moines, 106 Iowa, 96. It was not cured, even if it could be, by any subsequent instruction. Bur plaintiff insists that defendant may not complain, because it asked^ no instructions relating to the subject. If the instruction had been good as given, defendant could not, in the absence of request, complain of it. But it was the duty of the trial court, in- giving its instructions, to announce correct principles of law. If' it erred in this respect, failure of defendant to ask proper ones will not cure the error. These rules are fundamental, and need no citation of authorities in their support. [19] II. In the fourth instruction the court said; “As applied in this case, the negligence charged in plaintiff’s petition against the defendant, if it has, under the facts and [20] circumstances shown in evidence, omitted to do something which an ordinarily careful person would do, or has done something, which an ordinarily careful person would omit, under the circumstances, then you will be warranted in finding that the defendant is guilty of negligence; and, if you find from said evidence that the plaintiff has done any act which directly contributed to the injury, then you will be warranted ■ in finding that she was guilty of contributory negligence, and your verdict shall be for defendant.” It is-insisted t-hat under this instruction the verdict should have been for defendant, for the reason that many acts of the plaintiff contributed to the injury; e. g. her presence at the time it was received. The instruction is not happily worded, and perhaps, strictly speaking, defendant is correct in its contention. It is evident, however, that the court intended to say “negligent act” of plaintiff; and on a retrial, to avoid all question, that term should be used. 4 A witness was permitted to state that some days after the accident plaintiff told her (witness) how she had been hurt, and complained of her shoulder and chest. Declarations as to- present pain are, no doubt, admissible, but narrations of past occurences and statements as to a past state of body or mind cannot be received in evidence. Keyes v. City of Cedar Falls, 107 Iowa, 520. For the errors pointed out, the judgment is reversed.