Carpenter v. City of Red Cloud

• Decision Date: 05 March 1902
• Citation: 89 N.W. 637,64 Neb. 126
• Parties: CARPENTER v. CITY OF RED CLOUD.
• Court: Nebraska Supreme Court

64 Neb. 126

89 N.W. 637

CARPENTER

v.CITY OF RED CLOUD.

Supreme Court of Nebraska.

March 5, 1902.

Syllabus by the Court.

1. In an action for damages for injuries to the person and property of the plaintiff, where the testimony clearly shows that plaintiff has sustained substantial damages to both person and property, a judgment for $1 damages will be set aside as grossly inadequate.

2. Whether, in an action for injures to the person, a new trial may not be granted on account of the “smallness of damages,” where the testimony clearly shows that the damages awarded are grossly inadequate as compensation for the pecuniary injuries actually sustained, quære.

3. Conduct of the court in the giving of instructions and the admission of testimony criticised.

Commissioners' opinion. Department No. 2. Error to district court, Webster county; Beall, Judge.

Action by Allen H. Carpenter against the city of Red Cloud. Judgment for defendant, and plaintiff brings error. Reversed.Searle & Wells, for plaintiff in error.

J. R. Mercer and G. R. Chaney, for defendant in error.

OLDHAM, C.

This was an action by the plaintiff against the defendant, the city of Red Cloud, Neb., for injuries to the person and property of the plaintiff. The injuries are alleged to have been occasioned by the negligence of the defendant city in digging a ditch across one of its streets, and leaving it entirely unprotected, so that, as the petition alleges, the plaintiff, while driving with his team and buggy along defendant's street, drove into the ditch, and, as a result of the accident, killed one of his horses, crippled the other by breaking its fore leg, until its value was entirely destroyed, injured his buggy materially, and was himself thrown violently to the ground, and received serious and permanent bodily injuries. Defendant answered this petition by alleging that the injury was occasioned by the contributory negligence of the plaintiff. The testimony on the part of plaintiff clearly showed that he had actually received serious and permanent bodily injuries as a result of the accident. It also showed that before the injury he was an able-bodied man, 39 years of age, and was earning by his labor $1.50 per day, and that as a result of the injury he had been for about a year unable to earn anything by manual labor. The evidence also showed that he had expended about $30 for medical services and attendance on account of his injuries. The testimony as to the extent of plaintiff's injuries was not seriously disputed by the defendant. The only direct effort made to discredit the extent of his injury was an attempt to show that plaintiff owned only a one-half interest in the team that was destroyed. The jury returned a verdict for the plaintiff, and assessed his damages at $1. There was judgment on the verdict, and plaintiff brings error to this court.

Numerous errors are alleged in the proceedings of the court in the trial below, both in the admission of testimony and in the giving of instructions; and, while we think that most of the allegations of error are well assigned, yet, in view of the conclusion which we shall reach, it will only be necessary to examine one of these allegations, and that is that the judgment is contrary to the evidence, and that the damages assessed are grossly inadequate.

It is urged by counsel for the defendant that in view of section 315 of the Code of Civil Procedure,...