Barbee v. Reese

CoopeR, J., delivered the opinion of the court. In April, 1881, the appellant, a married woman, far advanced in pregnancy, while quietly sittingin her home near an open window fronting the public street, was assaulted by the.appellee, who was in a state of intoxication, and who with a drawn pistol advanced across the street cursing and threatening to shoot the appellant, and came into appellant’s house, cursing and threatening to shoot her. The husband of appellant was absent at this time, and being unprotected she fled from home to escape the threatened danger. In the hurry of her flight she climbed a fence inclosing her home and in getting down on the opposite side, jumped or fell a distance of some three feet. Three days afterwards she was delivered, at great danger of her life and! after long and excruciating suffering of a dead child, which from the testimony of the attending physician had been dead two or three days. The fostus was alive after the assault by the appellee, and the evidence leaves scarcely a doubt that it was killed by the fright or exertion of the mother caused by the attack upon her. This is a suit brought by the woman to recover damages from her assailant, and the cause having been submitted to a jury under instructions correctly announcing the law, resulted in a verdict in favor of the defendant. It is urged by counsel for the appellee that the verdict ought not to be disturbed because we cannot say that the appellant will in any event recover more than nominal damages. The reply is that on the evidence now before us she ought to recover a far greater amount, what that amount may be is uncertain, because of the injuries inflicted; but we must pre [910] sume that it will be proportionate to the damage, in which case it must be by no means a nominal recovery. It is apparent that injustice has been done' and that appellant is entitled to a new trial. The judgment is reversed.