City of Shawnee v. Slankard
| Decision Date | 27 June 1911 |
| Citation | 116 P. 803,29 Okla. 133,1911 OK 230 |
| Parties | CITY OF SHAWNEE et al. v. SLANKARD. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
The expectation of life of one injured by another's negligence may be shown as a basis for the estimation of damages in a case where the evidence tends to show the injury is permanent, and standard tables or mortality are admissible in evidence upon this question.
Rule 25 of this court (20 Okl. xii, 95 P. viii) requires that where a party complains of instructions given or refused he shall set out in totidem verbis the portions to which he objects or may save exceptions, and where this is not observed alleged errors in instructions will not be reviewed.
Where the evidence discloses that defendant, in the construction of a sewer ditch, left the same unguarded and without a light or other danger signal to warn travelers thereof, and a party acting with due care fell into the same and received injuries which the evidence tends to show are permanent by having his shoulder thrown out of place, his ankle badly injured, and his knee sprained, suffering great pain and agony, and where the evidence further shows that the injured party had no other means of support than his manual labor, a verdict in the sum of $2,000, returned by a jury on a trial which appears to have been free from prejudice, will not be set aside in this court on the ground that it is not supported by sufficient evidence, and is excessive.
The allowance of amendments to pleadings, either before or after judgment, in the furtherance of justice, when the same do not change substantially the claim or defense, rests in the sound discretion of the trial court, and the allowance of the same will not be disturbed on appeal, unless it is made to affirmatively appear that its exercise by the court has operated to the prejudice of the rights of the complaining party.
Error from District Court, Pottawatomie County; W. N. Maben, Judge.
Action by J. O. Slankard against the City of Shawnee and another. Judgment for plaintiff, and defendants bring error. Affirmed.
J. H Maxey and C.J. Benson, for Chas. T. Derr Const. Co. F. H Reily, for defendant in error.
This case presents error from the district court of Pottawatomie county, and is an action wherein defendant in error, as plaintiff, sued the city of Shawnee and the Chas. T. Derr Construction Company for damages growing out of certain personal injuries which he avers arose by and through their negligence.
In the petition filed, plaintiff averred that the Chas. T. Derr Construction Company was, on the 5th day of March, 1908 building a sewer through, across, and over certain streets and alleys of the defendant, the city of Shawnee, on a contract; that on the night of the said date the plaintiff, while carefully riding along the street on horseback, and without any knowledge of the ditch being open, and without any negligence on his part, rode into the same and was thrown from his horse, which fell upon him, so that his shoulder was thrown out of place, his right leg bruised and broken, and that he was otherwise bruised and injured. The negligence alleged was in the construction of the ditch, and in having left the same without signal or lights to warn the public of the location thereof. Plaintiff alleged that he suffered great pain and anguish and was permanently injured in his shoulder and leg; that he had made certain expenditures for medicine and doctor bills, and that he was rendered incapable of performing manual labor, and lost much time. The defendant answered, denying generally the averments of the petition, and set up the defense of contributory negligence. After the issues were made up, a trial was had to a jury, which returned a verdict in favor of plaintiff in the sum of $2,000. After a motion for new trial was filed and denied, the case was brought to this court for review.
Counsel for plaintiff in error allege and argue four assignments of error: First, the court erred in permitting plaintiff to introduce in evidence certain mortality tables; second, in giving instruction No. 5; third, that the verdict was not supported by sufficient evidence, and was excessive; and, fourth, in permitting defendant in error to file an amendment to his petition after the verdict had been returned.
Discussing these in order, it may be stated that evidence was offered and admitted, showing the serious character of the injuries suffered by plaintiff, and the testimony of a physician that they were such as would indicate a permanent weakness, and that the injured shoulder, particularly, would not be likely to ever recover the strength that it had prior to the injury. Under these circumstances, there was no error in the admission of the tables. Where an action is brought to recover for the death of a person injured, the measure of recovery is the value of his capacity to earn money, and standard tables showing the ordinary expectancy of life are held to be competent evidence of the time involved. Hence where, as in this case, the...
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