O'Connor v. Chi., R. I. & P. Ry. Co.
| Decision Date | 26 October 1909 |
| Parties | O'CONNOR v. CHICAGO, R. I. & P. RY. CO. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Scott County; J. W. Bollinger, Judge.
Action for damages resulted in a verdict and judgment for plaintiff. The defendant appeals. Reversed on rehearing.
For former opinion, see 117 N. W. 979.Carroll Wright, J. L. Parrish, and Cook & Dodge, for appellant.
Lane & Waterman, for appellee.
Through negligence of an employé of defendant, as was conceded in the answer, a baggage car in which plaintiff was engaged at his usual avocation was overturned, and he precipitated nearly the entire length of the car on his head, and articles in the car fell on him. The testimony of physicians as to his condition as a result of the injuries is in sharp conflict. If the witnesses called by plaintiff are to be relied on, in connection with the evidence of himself and wife, he is in a most deplorable condition. If the physicians of defendant are right in the opinions they have expressed, little else than hysteria ailed him.
1. The only matter submitted was the assessment of damages, and with reference thereto the jury was told that plaintiff was entitled to recover damages reasonably and naturally consequent of the injury caused by the overturning of the car, to consider all the evidence bearing thereon, and was farther instructed as follows: The instruction is criticized in that it limited consideration of loss in future earning capacity to employment in the occupation of plaintiff previous to the injury. In confining the jury to the determination of the question “To what extent has he been disabled or incapacitated from pursuing his calling in life?” in connection with those enumerated besides, any other inquiry was excluded, and there is no escape from the construction of the clause as stated. Counsel for appellee, by dissecting and reconstructing it, seem to have convinced themselves otherwise, but the jurors, who cannot be assumed to have been linguists or logicians, must have understood what the language indicates, namely, that impairment in capacity to follow the vocation he had been engaged in for 23 years was the element of damages to be taken into account by them, rather than impairment of his power generally to earn money. Because no evidence of his ability subsequent to the injury to engage in some other occupation was adduced, it was thought on the former hearing that the instruction might be sustained. Upon reconsideration, we are persuaded that this is not so. Up to the time of the trial he had been unable to engage in any employment, but this did not preclude the jury from concluding that, though he might not be able to act as train baggageman and express messenger, he might so far recover as to earn money at any of many other avocations in life. He was but 44 years of age at the time of the injury, and though the evidence in his behalf indicated total disability, that introduced by defendant, while recognizing the serious nature of his condition, pointed to substantial improvement, if not complete recovery. He was in possession of his faculties, though his mind may not have been quite so clear as formerly, and the jury was not bound to accept absolutely the theory of the one party or of the other as to his condition, but might well have concluded that, though his injuries were grievous and permanent, his condition unconsciously was influenced by introspection and by the pending litigation, and that with its final disposition and change in environment substantial improvement, if not restoration of his nervous system, were not only possible, but probable. If so, then the probability of his earning money in the future in some other calling should not have been excluded from consideration.
In Trott v. Railway, 115 Iowa, 80, 86 N. W. 33, 87 N. W. 722, an instruction limiting “the extent of plaintiff's earning power in the future to that of a laboring man” was held to be erroneous, on the ground that “he might be totally disabled from performing manual labor, yet be able to earn in other avocations.” A like conclusion was reached in Laird v. Railway, 100 Iowa, 336, 69 N. W. 414, where the instruction was to “allow him only such sum as will compensate him for his loss in being disabled from pursuing his usual business or performing other manual labor,” and this was construed to exclude consideration of ability to earn money otherwise than by manual labor as tending to lessen the damages to be awarded and it was adjudged erroneous. In Bettis v. Railway, 131 Iowa, 46, 108 N. W. 103, the instruction was approved because the reference to manual labor related to what he would have done but for his injuries, and nothing was said as to the character of labor which he might afterwardperform. It is not the disabling to follow any particular vocation for which compensation is awarded, for this might do no more than interfere with the taste or ambition to engage in some particular pursuit, though this may be an element of damages, but it is the impairment of the capacity to earn money generally, regardless of the kind of occupation, the lessening of the earning capacity, which is to be taken into account. This appears from the decisions cited as well as from Morris v. Railway, 45 Iowa, 29,Cotant v. Railway, 125 Iowa, 46, 99 N. W. 115, 69 L. R. A. 982, and Mitchell v. Ry., 138 Iowa, 283, 114 N. W. 622. The same rule prevails elsewhere. McCoy v....
To continue reading
Request your trial