City of Fort Wayne v. Durnell

• Citation: 42 N.E. 242,13 Ind.App. 669
• Decision Date: 26 November 1895
• Docket Number: 1,636
• Parties: CITY OF FORT WAYNE v. DURNELL
• Court: Court of Appeals of Indiana

42 N.E. 242

13 Ind.App. 669

CITY OF FORT WAYNE v. DURNELL

No. 1,636

Court of Appeals of Indiana

November 26, 1895

From the Allen Circuit Court.

Judgment affirmed.

W. H Shambaugh, S. R. Alden and B. F. Ninde, for appellant.

Colerick & France, for appellee.

OPINION

ROSS, J.

This appeal is from a judgment recovered by the appellee, against the appellant, for personal injuries alleged to have been received from a fall while passing over one of the sidewalks in said city, which was in an unsafe and dangerous condition for use.

The only specification of error assigned relates to the ruling of the court below, in overruling appellant's motion for a new trial.

The cause was tried by jury, and at the request of appellant, a special verdict was returned.

The first question urged by appellant relates to the action of the court in requiring the jury, after they had returned their verdict into court, to again retire and fill certain blanks left therein.

When the jury first returned their verdict, the concluding part which the court instructed them was not sufficient because they had left certain blanks which they should have filled reads as follows: "That by reason of said injuries he [appellee] was unable to do any labor whatever, for more than four months next following the 10th day of January, 1892. That during all of said time, by reason of said injuries and said broken limb, he suffered great pain and agony. That at the time he received such injuries he was a first-class locomotive engineer, and earning one hundred and thirty ($ 130.00) dollars per month; that during his said confinement by reason of said injuries, he was under the medical care of Dr. McOscar, in the treatment of said injuries, which said medical care was worth the sum of $ 100.00. That plaintiff laid out and expended for medicines and appliances on account of said injuries, the sum of $ 75.00; and that his nursing for the period of two months as aforesaid, was of the value of $ 60.00, and that by reason of the pain and suffering occasioned by said injuries the plaintiff was damaged in the sum of dollars.

"We further find that at said dangerous point on said sidewalk at its intersection of the north line of said alley as aforesaid, on the night plaintiff received the injuries as aforesaid, there was at said point no barricades, red or white lights, or other warning to those using said walk, of its dangerous condition at said point.

"If, upon the foregoing facts, the law be with the plaintiff, we find for the plaintiff. If, upon the foregoing facts, the law be with the defendant, we find for the defendant. If the law be with the plaintiff upon the foregoing facts, we assess his damages at dollars.

"We, the jury, find for the plaintiff."

The court before requiring the jury to retire to again consider their verdict, instructed them that it was necessary that they fill the two blanks left therein, as shown above. When the jury again returned their verdict, they had filled the blank wherein formerly they had given nothing for "pain and suffering," by inserting therein the sum of $ 500.00, and in the blank making the general assessment of damages, they had inserted the sum of $ 1,255.00.

It is the duty of the court upon the return of a special verdict, before its acceptance and the jury discharged, to see that it is regular in form, and if found to be informal or irregular, to require the jury to retire and correct it. For example, if the jury fail to make an assessment of damages, that makes the verdict defective, and they should be required to retire and make an assessment of whatever damages they may find. It is not always necessary that this assessment be in the form of a general assessment or finding; for if the jury give in the verdict all the data from which the court by the simple rules of addition may be able to ascertain the amount due, it will be sufficient. It is the data, or basis upon which damages are allowed, that control the general assessment, and if the data or the facts found show the general assessment to be incorrect, it should be corrected by the court. Dawson v. Shirk, 102 Ind. 184, 1 N.E. 292.

It is next urged that the jury failed to find all...