Rodey v. Travelers' Ins. Co.

• Decision Date: 15 January 1886
• Citation: 3 N.M. 543,9 P. 348
• Parties: RODEYv.TRAVELERS' INS. CO.
• Court: New Mexico Supreme Court

3 N.M. 543

9 P. 348

RODEY

v.TRAVELERS' INS. CO.

Supreme Court of the Territory of New Mexico.

Filed January 15, 1886.

If the verdict is clearly right on the evidence, erroneous instructions will not be cause for reversal. The instructions must be considered as a whole, and, when so considered, if the case is presented fairly to the jury, under the evidence, the judgment should stand.

Stone & Stone, for appellee.

Childers & Ferguson, for appellant.

LONG, C. J.

Bernard Rodey commenced an action against the Travelers' Insurance Company, appellant in this cause, before a justice of the peace in Bernalillo county, and therein recovered a judgment, from which the appellant herein appealed to the district court. A judgment was there rendered against the defendant, from which an appeal is taken to this court. The appellant relies on two alleged errors for a reversal of the case stated, in the brief as follows:

“(1) The first ground relied upon by the appellant is that the testimony for the plaintiff failed to make out his case. (2) The court gave a misleading and erroneous instruction.”

Of these, in the order stated, appellant contends the law of the case to be, “the accident, to justify recovery, must result from violent, external, visible means of injury; and argues that the evidence given in the cause forbids the conclusion that the injury complained of so occurred. The theory of the plaintiff is that he went in bathing at the Terrace bath while on a trip to California; that from external violence while so bathing the tympanum of his ear was broken or injured, causing him severe sickness, injury, and damage. The defendant maintains the injury did not so occur, but resulted from coughing, or, at most, only from contact with water, by diving in the usual and ordinary course of common bathers. The rule is well established that the supreme court will not enter into an analysis of the evidence and reverse, even if the verdict is against the weight of it. It need not decide on the question of preponderence. It must be assumed that the trial court gave careful consideration to the evidence, and so the verdict will be sustained if there is any evidence to reasonably support the verdict.

The plaintiff was a witness on his own behalf. He testified in substance that he went into the bath as other bathers did, but was milder in exercise than most of them. From this alone the jury might conclude fairly the injury was not the result of any unusual strain upon the person or of overexertion. He further testified:

“I took an ordinary dive from a plank into water six or seven feet deep. I believe the accident was done in the water. If I made an effort to cough after leaving the water, the rupture of the ear could have occurred there from the cough that instant, or the instant the ear got above the water; or it may have occurred when I dived, and the water suddenly collapsed against the ear, or when I came out of the water. I know as matter of fact that the tympanum of my ear was ruptured by the external violence of the water in diving. I sat down there treating my ear for nearly an hour. I was trying to get some ease. Was perfectly well before I went in to bathe.”

He further stated he grew worse, went to his room, and suffered intense agony, all immediately following the bath. It is beyond doubt, from this, the jury might have found the verdict returned in this case, on the ground that the injury was the result of “violent external causes.” The weight of the evidence is clearly that way. The witness states in positive terms: “My ear was ruptured by the external violence of the water in diving.” From the evidence, the conclusion reasonably follows that he leaped from a plank, for the purpose of diving into the deep water. A slight accidental turn of the body while descending into the sea might very easily bring his ear in contact with the water in such manner that the force of his passage through it would create the injury. If there is evidence reasonably tending to support the verdict, on appeal, after the trial court had opportunity to consider its weight, the supreme court will not interfere. This rule is well settled. McPheeters v. Hannibal & St. J. R. Co., 45 Mo. 22; French v. Millard, 2 Ohio St. 44; Randolph v. Carlton, 8 Ala. 606; Smith v. Houston, Id. 736; Canal-boat v. Simmons, 11 Ohio, 459.

Giving instructions per se wrong, which, as applied to the evidence, have not done an injury, is a harmless error. Hayden v. Souger, 56 Ind. 42, 47; Stipp v. Spring Mill G. R. Co., 54 Ind. 16. Erroneous instructions will not cause a reversal if the verdict is clearly right on the evidence. Lafayette & I. R. Co. v. Adams, 26 Ind. 76. The court need not, however, invoke the aid of that rule here to support the verdict, as it is the only one under the evidence which the jury could have properly found.

The second alleged error stated in appellant's brief is: “The court erred in giving to the jury a misleading and erroneous instruction.” This objection cannot be fairly considered alone, upon the particular instruction objected to. They must be considered as a whole, and are as follows:

“And thereupon the court gave to the jury, on behalf of the plaintiff, the following instructions, to-wit: (1) The court instructs the jury that if they find from the evidence that said plaintiff was wholly disabled, and prevented from the prosecution of any and all kinds of business, for the space of three weeks, by reason of bodily injuries, as testified to by him, and that said injury was caused by external, violent, and accidental means, they will further find that said plaintiff is entitled, under each policy, to the sum of $15 a week for the...