Palmquist v. Mine & Smelter Supply Co.

BARTCH, J., after stating tbe case as above, delivered tbe opinion of tbe court. Tbe appellant insists that tbe damages are excessive, and were awarded under the influence of passion or prejudice, and that tbe evidence is insufficient to justify tbe verdict. 1 The questions here presented have, on numerous occasions, been before this court, and our uniform bolding has been that, if there is any evidence to support tbe verdict, we are powerless to disturb it. In Braegger v. Railroad Co., 24 Utah 391, 68 Pac. 140, they were answered as follows: “The appellant complains that tbe verdict appears to be excessive, and given under tbe influence of passion or prejudice, and is not justified by tbe evidence. Tbe answer to this is that under our Constitution the amount of the verdict is a matter entirely within the province of tbe trial [261] court and jury, the same being a question of fact. If there is any evidence to support the verdict, this court has no power to pass upon it, or to set the verdict aside as being 2 excessive.” That there is proof in this record which supports the verdict is too clear for argument. It is also insisted that the court erred in its charge on the question of damages, where, among other things, the jury were instructed that in case they found from the evidence that the plaintiff had not yet recovered from the effects of the injury, or that thereby he had to any extent been permanently disabled, then they should take such facts into consideration in estimating his damages. Complaint is likewise made respecting the charge, wherein, inter alia,, the court instructed the jury that “it is the duty of an employer to provide reasonably suitable means and appliances to enable the employee to do his work as safely as the hazard incident to the employment will permit, and to provide a suitable and reasonably safe place for doing the work to be performed.” The answer to these points must be that there was no exception taken to any portion of the charge which raises any question for our consideration. We have repeatedly held that, in taking an exception to a charge, the objectionable portion must be pointed out, so as to afford the court an opportunity to 3 make a correction, and thus avoid the expense of a new trial. In this case the exceptions were taken simply by reference to the number of each paragraph, except the first, without even an attempt to point out, for correction, a single word, phrase, or sentence. This amounted simply to a wholesale exception to the entire charge, and can not avail the appellant in this court. In Nebeker v. Harvey, 21 Utah 363, 374, 60 Pac. 1029, where the exceptions to the charge were taken in a similar manner, it was said: “Numerous other errors, relating to the charge of the court, were assigned, but, in the absence of proper exceptions, we can not consider them. The exceptions are too general, simply referring to whole paragraphs of the charge. To be of avail in an appellate court, [262] they must specify tbe particular objectionable matter, so as to give the trial judge an opportunity to make a correction, notwithstanding that it is provided in section 3151, Revised Statutes, that ‘no reason need be given for such exceptions.’ That section does not authorize the making of wholesale exceptions without reference to the specific matter which is claimed to be objectionable. The reason of the rule which requires the specific objectionable matter to be pointed out in the presence of the jury is obvious. If the objection fi> such matter be well taken, the court may then make the correction called for, and thus not only save the expense of another trial hut also the time of the court. The rule has been firmly established in this State.” An examination of the portion of the charge, however, upon the subject of assessment of damages, in the light of the facts proven, shows it to> he substantially 4 5 correct, and, as to the instruction above referred to, relating-to the duty of the employer in providing suitable means and appliances and a safe place to work, the only objection urged is that the court failed to qualify such duty with the words “use ordinary care.” This objection, though mostly technical, when the whole charge is considered, could have been readily removed if counsel had called the attention of the court to it specifically. Not having done so, the general exception can he of no avail on appeal. It is also urged that the court erred in the admission of certain testimony. The witnesses Blackmire and Miner, after their qualification and familiarity had been shown, 6 were examined concerning the usual and proper method of loading such boilers, and the usual and common appliances in general use in the prosecution of such work. This class of testimony was objected to as immaterial. Upon careful examination of the evidence with reference to the issues presented by the pleadings, we are of the opinion that this objection was not well taken. We are likewise of the opinion that the material facts in proof on the subject were sufficiently stated in the hypothetical questions to render those questions [263] free from tbe objection of immateriality. “Hypothetical 7 questions to an expert witness may be framed either upon all the "facts in the case or upon any part of the facte assumed to be true which is sufficient in itself.” 8 Enc. Pl. and Prac., 755; Sterns v. Field, 90 N. Y. 640; Medill v. Snyder, 61 Kan. 15, 58 Pac. 962; Yardley v. Cuthbertson, 108 Pa. 395, 1 Atl. 765, 56 Am. Rep. 218; Morrisett v. Wood, 123 Ala. 384, 26 South. 307, 82 Am. St. Rep. 127; Finn v. Cassidy, 165 N. Y. 584, 59 N. E. 311. There are other questions presented, but we do not deem them of sufficient importance to require separate discussion. We find no reversible error in the record. The judgment is affirmed, with costs. BASKIN, J., and HAET, District Judge, concur.