Colorado Springs & Interurban Ry. Co. v. Nichols

• Decision Date: 04 November 1907
• Parties: COLORADO SPRINGS & INTERURBAN RY. CO. v. NICHOLS.
• Court: Colorado Supreme Court

92 P. 691

41 Colo. 272

COLORADO SPRINGS & INTERURBAN RY. CO. v. NICHOLS.

Supreme Court of Colorado

November 4, 1907

David P. Strickler, McAllister & Gandy, and Dines Whitted & Dines, for appellant.

W. J Chinn and R. P. Ady, for appellee.

STEELE C.J.

The appellee, while a passenger on one of the appellant's cars, was, as shown by the testimony, thrown from her seat to the floor, and sustained serious injuries, for which she claims damages. The record clearly discloses the negligence of the appellant, and the jury awarded damages in the sum of $5,000. From a judgment in the foregoing amount, the appellant appealed.

It is urged that the court erred in receiving testimony concerning plaintiff's ability to perform her usual household work and in refusing to instruct the jury that she could not recover damages on account of any impairment of her ability to perform such work and in authorizing the jury to award her damages therefor. The complaint does not allege any amount as damage sustained for the impairment of plaintiff's ability to perform household duties, nor was the jury instructed upon the subject. No claim was made by the plaintiff that she had been damaged in any specific amount because of the impairment of her ability to perform her household duties. The complaint alleges a permanent disability caused by her injuries received through the negligence of the defendant, and, as showing her condition the court permitted plaintiff to prove that before her injuries she had uniformly performed certain household duties. Counsel offered the following instruction, which was refused: 'The jury are instructed that, if you find the issues joined herein for the plaintiff, nevertheless she is not entitled to recover any damages from the defendant by reason of any impairment, if any, of her ability to perform her usual and ordinary household duties by reason of the injuries complained of, if any.' The case D. & R. G. R R. Co. v. Young, 30 Colo. 349, 70 P. 688, is relied upon as supporting counsel's contention that the court committed vital error in refusing to instruct the jury as requested. In the case mentioned the jury was instructed that plaintiff was entitled to such reasonable amount as would compensate her for her inability to perform manual labor; and, in fixing the amount of her recovery, there should be taken into consideration her loss of time resulting from her incapacity to labor. The plaintiff in that case, as in this, was a married woman, living with her husband. The court held that, as she was required to perform the ordinary household duties for her husband, and was entitled to no compensation from him for such services, the jury was not authorized to allow her damages which would compensate her for her inability to perform household duties, and in fixing the amount of her damages to take into consideration her loss of time resulting from her incapacity to labor. Here the plaintiff does not seek damages for her loss of time and inability to perform her household duties, not from any other impairment of her ability to earn money; and the court expressly charged the jury that she was not to be awarded damages for her inability to earn money or for any loss sustained by such impairment. The court in the case cited does not hold that a married woman may not recover damages if she be permanently injured, and that her inability to labor may not be an element of such damage, but does hold that she may not recover for loss of time from her household duties, for such loss is an element of damage which the husband alone may recover. It was entirely proper, we think, for the court to permit the witnesses to state that, before the plaintiff was injured, she performed certain work, including her household duties, and to state what work, if any, she could perform after her injury, not for the purpose of laying claim to damages for loss of time from her household duties, for which she cannot recover, but for the purpose of showing the extent of her injury. That the plaintiff did not seek damages for her inability to perform her household duties as such, and made no claim therefor in the pleadings or in the evidence, is clearly shown by instruction No. 10, wherein the jury was instructed that, 'in arriving at the amount of such damages, you should take into consideration the nature and extent of the injuries, if any, sustained by plaintiff, and the physical and mental pain and suffering, if any, she has suffered on account of such injuries. You should also consider whether the plaintiff's injuries are merely temporary or likely to continue for a future period, or to be permanent; and, if you find from the evidence that such injuries, or any of them, are likely to continue for a future period, or to be permanent, then you should also consider any future physical or mental pain or personal inconvenience she is likely to suffer on account of such injuries, as well as those you may find from the evidence she has already suffered.' The question whether she could or could not recover compensation for the loss of time from her household duties not being an issue raised by the pleadings or evidence, it was not error to decline to instruct the jury as requested. Moreover, the instruction offered does not correctly state the law. A married woman is entitled to recover damages for the impairment of her ability to labor, independently of the husband's right to recover for the loss of her time. Chief Justice Bleckley, in the case Powell v. Augusta & Summerville R. R. Co., 77 Ga. 200, 3 S.E. 759, expressly so holds, and states in the course of his opinion: 'It may be thought that the loss of ability to labor is not pain, but this is a mistake. There is no greater blessing of life than the ability to labor, even though the...