Goken v. Dallugge

• Decision Date: 19 April 1905
• Citation: 103 N.W. 287,72 Neb. 16
• Parties: GOKEN ET AL. v. DALLUGGE.
• Court: Nebraska Supreme Court

72 Neb. 16

103 N.W. 287

GOKEN ET AL.

v.DALLUGGE.

Supreme Court of Nebraska.

April 19, 1905.

Syllabus by the Court.

In an action for personal injuries it is error to give an instruction allowing the jury to assess damages for permanent injuries or lasting impairment of health, unless there is evidence showing with reasonable certainty that such permanent injuries or lasting impairment of health were in fact sustained by the plaintiff.

On rehearing. Reversed.

For former report, see 99 N. W. 818, 101 N. W. 244.L. S. Hastings, Matt Miller, and A. M. Walling, for plaintiffs in error.

Arthur J. Evans, C. M. Skiles, C. H. Aldrich, and E. C. Strode, for defendant in error.

LETTON, C.

This is a rehearing of this case formerly reported in 99 N. W. 818, and 101 N. W. 244. The facts are perhaps sufficiently related in the former opinion, but it may be well to state that according to the plaintiff's testimony the miscarriage did not result from fright alone, since it appears that when the gun was pointed at her she was apparently shocked for a moment by fright, and that she then turned and ran for some distance until a corncrib intervened between her and the defendant. There was sufficient medical testimony to warrant the jury in finding that the plaintiff's injuries were a direct result of the fright and violent physical exertion occurring at the same time.

After a careful examination of the record, we are of the opinion that there was not sufficient evidence as to the existence of permanent injuries or a lasting impairment of the plaintiff's health to justify the court in instructing the jury upon that point, or to warrant the jury in considering the same as an element of damage. The evidence upon this point is substantially set forth in the former opinion, and, tested by ever criterion, is clearly insufficient.

It is insisted, however, by the plaintiff that the damages are not more than sufficient to fairly compensate the plaintiff for the injuries actually sustained and reasonably certain to be suffered by the plaintiff in the future, and that, therefore, it was error without prejudice to submit the question of permanent injuries. The evidence shows that a physician was first called to the plaintiff on the 2d day of May, and that his last visit was upon the 8th day of May, when the plaintiff was still in bed, but recovering; that in all he made five visits; that from the time she was able to be about until the time of the trial the plaintiff...