Muskogee Elec. Traction Co. v. Wimmer
| Decision Date | 20 January 1920 |
| Docket Number | Case Number: 8906 |
| Citation | 194 P. 107,80 Okla. 11,1920 OK 26 |
| Parties | MUSKOGEE ELECTRIC TRACTION CO. v. WIMMER. |
| Court | Oklahoma Supreme Court |
¶0 1. Negligence--Questions for Court and Jury.
In the cases involving the question of primary negligence, the rule is now settled that when a given state of facts is such that reasonable men fairly differ upon the question as to whether there was negligence or not, the determination of the matter is for the jury. It is only where the facts are such that all reasonable men must draw the same conclusion from them that the question of negligence is ever considered one of law for the court.
2. Damages-- Personal Injuries--Loss of Eye--Excessive Damages.
It would be impossible to recount all the factors which enter into the common and general notions of what is fair and just as a basis to measure the damages for personal injuries. There can be no absolute standard to measure such damages, and a wide latitude of discretion is necessarily left to the good sense and discretion of the jury which fixes the award. And, in an action for personal injury, a verdict will not be set aside for excessive damages unless it clearly appears that the jury committed some gross and palpable error, or acted under some improper bias, influence or prejudice, or has totally mistaken the rules of law by which damages are regulated. Held, that a verdict of $ 7,833 awarded a motorman upon a street car, who was also 33 years of age, for the loss of an eye, where the injury necessitated its removal, is not excessive.
3. Same--Elements of Damage--Instruction.
In a personal injury action in which the plaintiff suffered the loss of the sight of an eye and the same was removed from its socket, the court instructed the jury that one of the elements of injury entering into his damages was the inconvenience of going through life with one eye and such anguish as he had suffered and would continue to suffer by reason of the mutilation of his face and the fact that he might become an object of curiosity and ridicule among his fellows. Held, not error.
4. Appeal and Error--Review--Conflicting Evidence.
Where the verdict of a jury is based on conflicting evidence, the same will not be disturbed on appeal, but the rule is well established in this jurisdiction that there must be evidence reasonably tending to support the verdict of the jury, and that a conflict of evidence is such conflict that reasonable minds might reach different conclusions.
5. Same--Verdict-- Sufficiency of Evidence.
In a civil action triable to the jury, where there is competent evidence reasonably tending to support the verdict of the jury, and no prejudicial errors of law are shown in the instructions of the court, or its ruling on law questions presented during the trial, the verdict and finding of the jury will not be disturbed in appeal.
Error from District Court, Muskogee County; Chas. G. Watts, Judge.
Action by Charles U. Wimmer against the Muskogee Electric Traction Company. Judgment for plaintiff, and defendant brings error. Affirmed.
B. B. Blakeney and J. H. Maxey, for plaintiff in error.
J. E. Wyand, A. F. Molony, C. A. Ambrister, Jess W. Watts, and B. Broaddus, for defendant in error.
¶1 This was an action for damages for personal injuries claimed to have been received by the plaintiff below, who is defendant in error in this proceeding, while in the employ of the defendant below, the plaintiff in error here, as a motorman on an electric freight car. The parties will be referred to as they appeared in the trial court.
¶2 The action was commenced on the 7th day of January, 1916. On the 15th day of April, 1916, the plaintiff asked and was granted leave to file an amended petition, in which, for his cause of action against the defendant, he alleged:
¶3 That on the 14th day of August, 1915, plaintiff was regularly in the employ of said defendant as a street-car motorman, and as such was in charge of the operation of a certain electric freight car, owned and operated by said defendant, the same being numbered 32; that among other duties at the time enjoined upon the plaintiff, as such employe, by the defendant, it was plaintiff's duty to work upon and make repairs to said electric freight car and the appliances and appurtenances thereto attached as the occasion required, as far as plaintiff was able to do; that on the 14th day of August, 1915, while in the performance of his duty as such employe plaintiff was engaged in taking out and replacing a certain air pipe connected with an air compressor attached to and suspended under said freight car and running to a certain air tank or reservoir, also attached to and suspended from said freight car, and while so engaged it became necessary to remove broken pieces of the threaded end of said air pipe which was screwed into the end of said air tank, and that while plaintiff was so engaged in attempting to remove the said broken end of said air pipe, being assisted at the time by one Albert Williams, who was at said time a servant and employe of the defendant, and whose duty it was to assist in making such repairs, and while plaintiff and the said Williams were in the proper discharge of their duty, one Burley E. Long, who was then and there employed by defendant as its master mechanic and foreman with full power and authority to superintend and direct all necessary repairs to the rolling stock of defendant, including said electric freight car, No. 32, directed the plaintiff to stop, for the time being, his efforts to remove said broken end of pipe aforesaid, and the said Long thereupon assumed charge, of said work, and under the direction of said Long he was assisted by the said Albert Williams; that the said Long and the said Williams thereupon attempted to remove said broken end of pipe aforesaid by driving a cold chisel into the opening of said pipe as tight as the same could be driven, and after doing so applied a pipe wrench to said cold chisel and both the said Long and the said Williams applied their joint strength in attempting to twist said cold chisel so driven into the broken end of said pipe and thereby loosen and unscrew said broken piece of pipe so that the same could be removed; that said wrench was provided with teeth or sharp points for the purpose of cutting into round pipe or soft iron, lead, or other soft material, so that the same could be twisted or turned, and that said wrench and the teeth thereon were of hard, brittle steel; that said cold chisel was also of hard steel and was not round, but had sharp edges at the point where said wrench was applied as aforesaid; that when the said Long and the said Williams attempted, by the use of said wrench applied as aforesaid to said cold chisel, to turn or unscrew said broken piece of pipe, the teeth or sharp points on said wrench being so strongly applied to said cold chisel and against the sharp edges thereon, one of the teeth on said wrench broke and such broken piece flew and struck plaintiff in the left eye, injuring the plaintiff as hereinafter stated; that at the time the plaintiff was struck he was standing a short distance from the said Long and said Williams waiting, under the direction of the said Long, to assist in making repairs on said car; that the said cold chisel and wrench were wholly unsuited for the use to which the same were being put by the said defendant and its employes aforesaid, as the same were being used by the said Long and the said Williams as aforesaid; that the said wrench and the said cold chisel were not intended to be used together as the same were being used at the time the plaintiff was injured; that the method used by defendant and its servants, Long and Williams, in attempting to remove said piece of broken pipe by means of said cold chisel and wrench aforesaid was not reasonably safe, and defendant carelessly and negligently failed to provide a reasonably safe method for such work; that the defendant and its employes, Long and Williams, were careless and negligent in the use of said wrench and said cold chisel as the same were being used at the time plaintiff was injured as aforesaid; that the said Long and the said Williams were acting within the scope of their employment at said time and that the plaintiff's said injuries were due directly and proximately to the carelessness and negligence of the defendant, its servants and employes in the manner aforesaid, and that plaintiff at the time was in the exercise of due care for his own safety; that when said broken piece of said wrench struck the plaintiff as aforesaid, it penetrated the plaintiff's left eye and thereby destroyed the sight of same, and as a result thereof it became necessary for the plaintiff to have the said eye removed, and that plaintiff has thereby fully lost the vision of said left eye; that the said injury and consequent removal of plaintiff's left eye has greatly weakened and impaired the vision of plaintiff's right eye, and that all of plaintiff's said injuries are permanent; that plaintiff has suffered great physical and mental pain and inconvenience as a result of said injuries, and will continue so to suffer during his entire life; that at the time plaintiff was so injured, he was a strong, able-bodied man, 33 years of age, and engaged as an electric motorman and switchman, earning and capable of earning $ 100 per month; that plaintiff has been unable to perform any manual labor or earn any money whatsoever since he was so injured as aforesaid, and that said injuries have greatly impaired his capacity to labor and earn money in the future, and that by reason of said injuries, received as aforesaid, plaintiff has been damaged in the sum of $ 10,000. Wherefore, plaintiff prays judgment against the defendant for the sum of $ 10,000 and costs.
¶4 The defendant answered by general denial, and for further defenses alleged in its answer contributory negligence on the part of the plaintiff...
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