City of S. Omaha v. Sutliffe

• Decision Date: 07 December 1904
• Citation: 72 Neb. 746,101 N.W. 997
• Parties: CITY OF SOUTH OMAHA v. SUTLIFFE.
• Court: Nebraska Supreme Court

72 Neb. 746

101 N.W. 997

CITY OF SOUTH OMAHA

v.SUTLIFFE.

Supreme Court of Nebraska.

Dec. 7, 1904.

Syllabus by the Court.

1. Under the issues involved in this case, held not error to omit from a general instruction on the measure of damages any reference to the social standing of plaintiff's mother.

2. Instructions examined, and held to not permit a recovery for loss of earnings during plaintiff's minority.

3. While the Carlisle and other mortuary tables of accepted accuracy and in general use are always properly admissible in evidence for

the purpose of aiding a court or jury in determining the probable expectancy of life, when such fact is in issue, yet, when admitted, these mortuary tables are not binding upon the estimate of the triers of such fact. They may, without such tables, make their own estimate from the age, health, habits, physical condition, and appearance of the person whose expectancy is at issue.

4. Chicago, Rock Island & Pacific Railway Company v. McDowell (Neb.) 92 N. W. 121, examined and distinguished.

5. In actions for personal injuries, it is not necessary to specially allege every indirect injury to each part of the body, to lay the foundation for such proof on the trial. Such proof may be admitted when the injury alleged is shown to have been the natural and proximate cause of the injury proven.

6. When medical testimony is relied upon to prove the cause or effect of a physical injury, it seldom goes further than an opinion based on the experience of the witness and the general learning of the profession. Positive statements of fact are seldom indulged in by physicians when testifying as experts, and yet this character of testimony is universally admitted by the courts of this country.

7. Action of the trial court in the exclusion of evidence examined, and held not prejudicial.

8. Award of damages examined, and held excessive. But held, further, that such excess may be cured by a remittitur of $3,000 from the judgment of the lower court.

Commissioners' Opinion. Error to District Court, Douglas County; Read, Judge.

Action by R. John Sutliffe against the city of South Omaha. Judgment for plaintiff. Defendant brings error. Affirmed on conditions.

A. H. Murdock, for plaintiff in error.

T. J. Mahoney and H. C. Murphy, for defendant in error.

OLDHAM, C.

This is an action for personal injuries received by plaintiff, a minor of the age of 3 1/2 years, who was thrown from a seat on the front end of a delivery wagon in the city of South Omaha, and injured in a manner which will be hereafter described. The suit was brought by his foster mother, as next friend of the minor, against the city of South Omaha, and resulted in a verdict and judgment for $10,000 damages, and to reverse this judgment the defendant city brings error to this court.

The facts underlying this controversy are that, when about one year old, plaintiff was abandoned by his father and mother, Richard and Cora Hooten, and given into the care and control of his aunt, Mrs. Anna R. Sutliffe, who subsequently legally adopted the child as her own. Mrs. Sutliffe resided with the plaintiff at the village of Bellevue, Neb., about six miles distant from the defendant city. On the morning of the injury (July 17, 1902) she left the plaintiff with his brother, who was about six years old, at her home, in Bellevue, and went on business to Omaha and Council Bluffs. After she had gone, a young man by the name of Lee, who was acquainted with the children, asked them to ride with him in his delivery wagon to South Omaha. The seat on the delivery wagon extended out to, and even with, the front end of the wagon. The plaintiff sat in the middle of the seat between the driver and his older brother. In this manner they rode to the city and transacted such business as the driver had in charge, and on the return home, while driving along Twenty-Fourth street of the defendant city, the front wheel of the wagon went into a deep ditch or gully, which had remained for a long time in the street, and which was obstructed from view by muddy surface water, and, as a result of this accident, plaintiff was thrown forward, with his head immediately in front of the wheel of the wagon, which passed over the right side of plaintiff's head, tearing off the scalp, commencing at the corner of the right eye, and passing in a semicircle upward and downward to a point above and behind the right ear, at the highest point of the semicircle abrading the periosteum to the extent of about one-half inch, turning the scalp down over the plaintiff's ear, and grinding the filth from the street into the wound. After the injury, plaintiff received prompt and efficient medical treatment at the hospital, and later at his home. This treatment was continued for a period of two months, and until the child became convalescent.

There is no complaint in the brief of the defendant city as to the sufficiency of the evidence to establish its liability for the injury, but its very able and exhaustive brief is directed entirely to an attack on the instructions of the trial court on the measure of damage, and to the rulings of the court on the admission and exclusion of testimony bearing on this question. We will examine these complaints as nearly as possible in the order in which they are presented in the city's brief.

The city, in its answer, alleged in mitigation of damages that the plaintiff's mother was a woman without character or reputation, and had abandoned plaintiff when he was one year old. This allegation was conceded to be true, and it is urged that the court should have given this admission in instructions to the jury to be considered in estimating the quantum of plaintiff's damages. There are two sufficient reasons, we think, why the court did not err in not including this admission in his general instruction on the measure of damages. One is that plaintiff did not allege in aggravation of damages any injury to his social position, and the other is that the city did not request an instruction submitting the question of the social standing of plaintiff's parents to the jury; and, again, plaintiff's social status would be affected rather by the reputation of his adopted parent than by that of his mother, under the admitted facts in this case.

It is next objected that the instruction stating the issues to the jury did not point out clearly what the material issues were. An examination of the record shows that no exception was taken to the two instructionssetting out the issues. In addition to this, however, we think that the issues were fairly and clearly set out in these instructions.

The next complaint to which our attention is directed is as to the action of the trial court in giving paragraph 11 of instructions on its own motion. The instruction is as follows:

“If you find for the plaintiff, it will be your duty to determine from the evidence the amount of his damages, which should be actual compensation for his injuries. In doing so, you should carefully consider, from the evidence, the nature, extent, and character of the injuries sustained; you should also determine whether or not the injuries to the plaintiff are permanent; and you should allow him for all damages which naturally and directly result from his injuries, whether in the past or in the future. You should allow him such damages for bodily pain and mental anguish as, under the evidence, you believe him entitled to; and you should allow him such damages for physical and mental disability, if any such there be, as, from the evidence, you believe him entitled to. The law establishes no rule by which to fix the amount of damage for bodily pain and mental anguish, but leaves it to you to determine from the evidence the reasonable amount thereof. If you should find from the evidence that the plaintiff will suffer damage by reason of impaired capacity to earn money, if any such impaired capacity you find, then, in estimating this element of the plaintiff's damage, you must bear in mind the fact that under the law the plaintiff would not be entitled to his earnings until after he became twenty-one years of age, and you should not allow plaintiff any damages for what he might otherwise have earned before coming of age. There is no testimony in this case upon which you can allow plaintiff anything for expenses occasioned by his injuries.”

It is alleged against this instruction that it permits the jury to award damages for the loss of earning capacity during the minority of the...