Chi., R. I. & P. Ry. Co. v. Teese

• Citation: 1914 OK 216,42 Okla. 188,140 P. 1166
• Decision Date: 12 May 1914
• Docket Number: Case Number: 3476
• Parties: CHICAGO, R. I. & P. RY. CO. v. TEESE.
• Court: Supreme Court of Oklahoma

1914 OK 216

140 P. 1166

42 Okla. 188

CHICAGO, R. I. & P. RY. CO. v. TEESE.

Case Number: 3476

Supreme Court of Oklahoma

Decided: May 12, 1914

Syllabus

¶0 EVIDENCE--Quantum of Damages--Conclusions. In an action against a railroad company for damages for personal injuries, it is prejudicial error to allow the plaintiff to testify as to the quantum of damages sustained, as it is an invasion of the province of the jury.

Error from County Court, Johnston County; Nick Wolfe, Judge.

Action by G. E. Teese against the Chicago, Rock Island & Pacific Railway Company. Judgment for plaintiff, and defendant brings error. Reversed and remanded.

This is an action brought by plaintiff for personal injuries, asking judgment for $ 1,000, against the defendant, the Chicago, Rock Island & Pacific Railway Company. The material allegations of the plaintiff's petition are as follows:

"Second. That on or about the 28th day of March, 1910, the defendant employed plaintiff as a laborer to help other employees of said defendant to construct and repair its bridges. Third. That on said day, while at work on the Washita bridge near the town of Tishomingo, Okla., for defendant company, its foreman and employees, under the instruction and by the direction of said foreman, carelessly and negligently, and without any negligence on the part of the plaintiff, rolled upon the right foot of plaintiff a large bridge timber, weighing no less than 1,000 pounds and breaking the big toe on plaintiff's right foot, and caused this plaintiff to lose about two months' time from work, which was well worth the sum of $ 150, and caused plaintiff great physical pain during said time. Fourth. Plaintiff states that said toe has never to this time wholly recovered its original strength and usefulness, and that it never will be as useful to him as it was prior to the time when defendant company through its negligence broke it. That it has been permanently injured, and by reason of said injury this plaintiff has been damaged in the further sum of $ 750. Fifth. That said large toe because of said injury is crooked and deformed, although plaintiff did all he could to prevent said deformity. Sixth. That because of said deformity, impaired usefulness of said toe, physical suffering, loss of time from work, occasioned, as above set out, through negligence of the employees and agents of defendant company, the plaintiff has been greatly damaged, namely, in the sum of $ 1,000."

An answer was filed in the form of a general denial, together with other defenses; the cause was tried on the 25th day of March, 1911, resulting in a judgment against the defendant in the sum of $ 750. The plaintiff offered evidence as to the quantum of damage measured by dollars and cents, which was admitted in evidence over the objection of the defendant. Motion for new trial was overruled, and the cause brought here for review.

C. O. Blake, H. B. Low, R. J. Roberts, and W. H. Moore, for plaintiff in error

P. B. H. Shearer, for defendant in error

RITTENHOUSE, C.

¶1 (after stating the facts as above). Plaintiff in error will be designated as defendant, and defendant in error will be designated as plaintiff, in accord with their relative titles in the trial court.

¶2 The defendant has assigned numerous errors, but in the view we take of this case it will only be necessary to consider one of them.

¶3 The attorney for plaintiff was permitted to ask, and the plain-to answer, over objections on the part of the defendant, the following questions:

"Q. You are asking $ 1,000 damages in this case. How do you arrive at the amount of damages which you have sustained? (Objection by the defendant because not the proper method of proving damages, and it is immaterial for witness to state how be arrived at the amount. Objection sustained.) Q. How much do you consider that you have been damaged? (Objection.)

"The Court: That is improper, it strikes me.

"Mr. Shearer: I was trying to get at it specifically. (Objection sustained. )

"Mr. Shearer: Will the court or counsel tell me the proper form to put the question in?

"The Court: No; that is your business.

"Mr. Shearer: I thought so.

"Q. Have you been out any money in this matter, expenses? A. Well, some.

"The Court: Well, how much, Mr. Witness? A. I was out the doctor's dressing my toe. Q. What doctor? A. Dr. Caton at Ravia. Q. Was that after you returned from McAlester? A. Yes, sir. Q. How much was that? A. $ 4, I think. Q. Nothing for medicine? A. No, sir. Q. How much do you estimate your physical and mental suffering worth? (Objection by the defendant because incompetent, irrelevant, and immaterial and calling for a conclusion from the witness.) Q. State what your mental suffering was and the physical pain. A. Well, I can hardly say as to how much I suffered, but I suffered a lot. Q. Well, what do you think it was worth? (Objection by defendant because incompetent, irrelevant, and immaterial and calling for a conclusion of the witness, and not the proper way to prove amount of damages. Defendant's objection overruled, to which it excepts.) Q. How much was it worth to you to have to go through that suffering? (Objection by the defendant because incompetent. irrelevant, and immaterial, and calling for a conclusion of the witness and not the proper way to prove amount of damages.) A. I would not want to go through the same experience again. (Motion to strike sustained.) Q. Now state how much you have been damaged. A. $ 750 all told. (Objection by defendant because the question is incompetent, irrelevant, and immaterial, calling for a conclusion of the witness and not the proper way to prove the amount of damages. Objection overruled. Exception by defendant.) A. I don't know that I still understand the question. Q. How much was it worth to you to undergo the agony and suffering that you underwent? (Defendant objected to the question as incompetent, irrelevant, and immaterial, calling for a conclusion of the witness, and not the proper way to prove the amount of damage. Objection overruled. Defendant excepts. ) A. It was worth $ 100 at the least. Q. How much have you been damaged by the permanent injuries of the toe as to injuring your ability to make a livelihood, and influencing your ability to travel about on foot? (Defendant objects because incompetent, irrelevant, and immaterial, calling for a conclusion of the witness, and not the proper way to prove the amount of damages. Overruled. Exception allowed defendant.) A. Well, as I stated a while ago, I think it is worth $ 750 at the least."

¶4 It is apparent that this testimony was not as to a fact, but as to a conclusion. In...