Kalembach v. Michigan Central Railroad

Grant, J. It is conceded in -this case that tbe court properly instructed the jury upon the measure of damages, but it is claimed that the court erroneously instructed them on the questions of negligence involved. Upon all these questions the jury found for the plaintiff, and I deem it unnecessary to discuss them. [512] It is insisted that the jury- were probably prejudiced upon the measure of damages by improper instructions upon the law of negligence. I cannot accede to this proposition. The law casts no such reflection upon honest and intelligent jurors. The law does not presume that a jury, which found the defendant liable notwithstanding erroneous instructions by the court, has been prejudiced thereby in their assessment of damages, especially in a case like the" present one. The verdict was for $150. What should have been the amount of damages so that the Court would say that they were not probably prejudiced? The result of this rule would be that a court must correctly instruct the jury upon all branches of every case, in order to avoid prejudicing the jury in their assessment of damages. But, in determining the question as applied to the present case, it is proper to consider the allegations in the declaration as to the injury and the consequent damages, and the proofs. The only allegation of special damages is— “That plaintiff had been put to great expense in procuring medicine, medical attendance, and care, in which he had expended the sum of $500 for physicians5 services, nurses, and help.55 It contains the general allegation that he was— “G-reatly and permanently injured, suffered great physical and mental pain, and became sore, sick, lame, and languishing.55 No claim, is made of injury to his horses or wagon. He called no physician, and expended no money for nursing, medicine, or help. There is no evidence that Dr. Champlin attended plaintiff, at any time, in consequence of sickness claimed to have been the result of this accident. There was no evidence that plaintiff was unable to attend to his work for more than two weeks, [513] and this testimony does not come from the plaintiff himself, but from his. son, who thought he was in bed four or five days, and that it was some two weeks before he got out. The declaration was not sufficiently specific to admit testimony of any permanent injury. No physician was called for the plaintiff, and the testimony of any permanent injury was of too 'indefinite a character' to form any reasonable basis for an award of damages. Plaintiff’s testimony on this point is as follows: “I am hardly a day without headache ever since. My off side is kind of not exactly right. I cannot remember as well as I use to before I got hurt.” The evidence in regard to the headache.s was stricken out by the court. Certainly no one would contend that the statement, “my off side is kind of not exactly right,” would furnish any basis for the jury to award damages. How was it not right? and why was it not right? were questions the jury must answer; and there was nothing to connect this trouble, whatever it was, with the injury. How much should the jury have awarded because he could not remember as well as he did before? It would be absurd to base damages upon such evidence. The testimony of his son John is no more satisfactory. It is as follows: “Since the injury I have noticed that father was sickly like a great many times, and seemed to be almost out of his head, and would refuse to eat his meals, and the like of that; and, furthermore, he has had one or two sick spells since that, and he always gets them when he does something that he stoops over.” The other son testified: “Since that time his mind does not seem to be as it was before, and his health has not been as it was before.” This loose and indefinite testimony constitutes all the [514] evidence of any peiunanent injury there is in the case. The jury evidently ignored it as of no value, as, indeed, they should have done. I think the court would have been justified in instructing the jury that there was no evidence of any permanent injury for them to consider. If there was no permanent injury, the damages assessed were ample under the proofs. There was evidence from the plaintiff’s own witnesses that plaintiff had a runaway team at the time, and that this same team had run away with him and with others before. If he took such a team into this place, it was a proper question for the jury to determine whether he was guilty of negligence which contributed to the accident. Under this record, I see no reason for holding that the jury were prejudiced by the alleged erroneous instructions. The errors, if any, were certainly not glaring ones. Judgment should be affirmed. Chamjplin, O. J., and Morse, J., concurred with CrRANT, J.