Kistler v. Southern R. Co.

• Decision Date: 24 May 1916
• Docket Number: 510.
• Citation: 88 S.E. 864,171 N.C. 577
• Parties: KISTLER v. SOUTHERN R. CO.
• Court: North Carolina Supreme Court

88 S.E. 864

171 N.C. 577

KISTLER v. SOUTHERN R. CO.

No. 510.

Supreme Court of North Carolina

May 24, 1916

Appeal from Superior Court, McDowell County; Justice, Judge.

Action by John Kistler by next friend against the Southern Railroad Company. The action was to recover damages for personal injuries caused by the alleged negligence of the defendant company. On denial of liability, there was verdict for plaintiff, assessing damage. Judgment on verdict, and defendant excepted and appealed. Affirmed.

In an action for negligent injuries, an instruction held not erroneous as allowing damages to mental powers without facts in evidence as to such loss.

S. J Ervin, of Morganton, and J. W. Pless, of Marion, for appellant.

C. C Lisenbee and Hudgins & Watson, all of Marion, for appellee.

HOKE J.

The evidence tended to show that, on the 17th of July, 1914 plaintiff, a boy 17 years of age, was unloading ice consigned to his employer, from a box car on defendant's side track at Marion, N. C., having been directed to said car by the agents of defendant company. While so engaged, and without warning of any kind, an engine of the company was run with great violence against the car, shoving the same along the track for two or three car lengths, throwing plaintiff over the wagon onto a pile of chestnut wood, causing serious and painful injuries from which plaintiff still suffers. It could not be seriously contended that defendant was not liable on the issue as to negligence, the proximate cause of plaintiff's hurt. There is no claim or testimony tending to show contributory negligence on part of plaintiff, but defendant insists that there was error committed, to his prejudice, on the issue as to damages, in that the court charged the jury they could estimate for the loss of mental powers as a result of plaintiff's injuries when there were no facts in evidence which tended to show any such loss. It has been held in several of our decisions (Worley v Logging Co., 157 N.C. 490, 73 S.E. 107, Bryan v. R. Co., 134 N.C. 538, 47 S.E. 15, and some others) that it amounts to reversible error where the loss of mental powers has been submitted to the jury as a distinct element of damages and there were no facts in evidence tending to show such loss, but we do not think the charge in the present case comes properly within the principle. On the trial, it was proved, among other things, that plaintiff received many bruises...