Barron v. N. Pac. Ry. Co.

• Decision Date: 10 September 1907
• Parties: BARRON v. NORTHERN PAC. RY. CO.
• Court: North Dakota Supreme Court

16 N.D. 277

113 N.W. 102

BARRON

v.NORTHERN PAC. RY. CO.

Supreme Court of North Dakota.

Sept. 10, 1907.

Syllabus by the Court.

In an action to recover for injuries to the person of the plaintiff by reason of the negligence of the defendant, while the plaintiff was a passenger riding in one of its cabooses, it was error justifying the trial court in granting a new trial to instruct the jury to take into consideration the loss of time occasioned plaintiff by the injuries complained of in fixing the amount of damages, when no loss of time was pleaded and no evidence offered showing the value of his time, the extent of his business, or giving the jury any facts on which to base a finding for loss of time.

This court cannot assume that the jury found only nominal damages for loss of time, when the court gave an erroneous instruction on damages for loss of time caused by the injury, on the strength of which the jury may have materially increased its finding as to the amount of damage.

When actual pecuniary damages are sought for loss of time, some evidence must be given showing such loss and its value to support an instruction to the jury to consider loss of time in fixing damages.

Appeal from District Court, Pembina County; W. J. Kneeshaw, Judge.

Action by G. L. Barron against the Northern Pacific Railway Company. Verdict for plaintiff. From an order granting a new trial, he appeals. Affirmed.E. R. Sinkler, for appellant. W. B. Kellogg and Ball, Watson & Young, for respondent.

SPALDING, J.

The plaintiff was injured by the collision of a caboose in which he was riding, with other cars, at the city of Grafton, in this state, on the 19th of July, 1904. This action was brought for the purpose of recovering damages for the injuries which he sustained, and especially for the loss of hearing in one ear, claimed to be the result of such accident. No claim was made in the complaint for any loss of time, and the only evidence set out relating to loss of time resulting from the accident is found in the question: “How long did it affect your capacity to work?” And the plaintiff answered: “Upwards of two months it bothered me, or thereabouts.” The record contains no evidence as to the value of his time or services, or any other information from which it could be even approximately ascertained. The court instructed the jury, among other things, that, if they found the plaintiff entitled to recover damages, they had a right to take into consideration the loss of time, if any, the plaintiff had suffered. To this portion of the charge the defendant excepted. The jury returned a verdict for the plaintiff in the sum of $900, and the defendant moved for a new trial, on the ground of errors occurring at the trial, among others being the instruction of the court to the jury relating to the loss of time of the plaintiff. The trial court granted the motion for a new trial without specifying the grounds upon which its order was based.

We do not know on what assigned error the trial court granted the motion for a new trial. It may have considered only one as sufficient, or it may have thought a combination of errors necessary. We, however, shall only consider one of the several assigned on the motion, as in our view of the case that furnished sufficient reason for granting defendant's motion. It is clear to us that it was justified in granting a new trial for its error in instructing the jury to take into consideration the...