Williams v. Clarke Cnty.

• Decision Date: 18 March 1909
• Citation: 120 N.W. 306,143 Iowa 328
• Parties: WILLIAMS v. CLARKE COUNTY.
• Court: Iowa Supreme Court

143 Iowa 328

120 N.W. 306

WILLIAMS

v.CLARKE COUNTY.

Supreme Court of Iowa.

March 18, 1909.

Appeal from District Court, Union County; H. M. Towner, Judge.

A suit to recover damages for personal injuries. There was a trial to a jury and a verdict and judgment for the plaintiff for $15,000. The defendant appeals. Reversed.Lloyd Thurston and Maxwell & Maxwell, for appellant.

Temple & Temple and W. S. Hedrick, for appellee.

SHERWIN, J.

On the question of the measure of the plaintiff's recovery, the trial court instructed as follows: “In ascertaining the amount of plaintiff's damages, you should give him such an amount as would fairly and reasonably compensate him for the injury received. In so doing you have a right to take into consideration the personal injury suffered, the wounds and hurts received, the physical pain, mental anguish, and humiliation already suffered, and any which you may find he may suffer in the future in consequence of such injury, and his expense incurred for medical attendance and nursing. If the jury find from the evidence that the injury of the plaintiff is permanent, that prior to the injury he was capable of earning and did earn his living by farming, and that said injury has in whole or in part incapacitated him from performing the manual labor incident to such occupation, then you may take into consideration such facts in determining plaintiff's damages. And in this connection the plaintiff's admitted expectancy of life may be considered by you; but regard should be had as to the probable time during such expectancy of life that plaintiff might reasonably be expected to be capable of performing manual labor on account of his age. In determining plaintiff's earning capacity as a farmer, the profits of such farming operation should not be considered. Only that should be taken into consideration of which plaintiff has been deprived by reason of the injury received.”

It will be noticed that the instruction in question permitted the jury to find damages for physical and mental pain which it might find the plaintiff would suffer in the future in consequence of such injury. The instruction was clearly erroneous because it permitted the jury to enter the field of speculation. The instruction should have limited plaintiff's recovery in that respect to such damages in the future as were reasonably certain to be caused by the injury. Fry v. Railway Co., 45 Iowa, 416;Ford v. City of Des Moines, 106 Iowa, 96, 75 N. W. 630;Sanders v. O'Callahan, 111 Iowa, 581, 82 N. W. 969;Hall v. Railway Co., 115 Iowa, 19, 87 N. W. 739.

The appellee concedes that the instruction was erroneous, but says that the error therein was cured by a subsequent instruction, in which the trial court said to the jury as follows: “And in determining any of the questions of fact presented in this case you should be governed solely by the evidence introduced before you. You should not indulge in any speculations or conjectures as to what might have been shown to be true, and all conclusions drawn by you should be based solely upon the evidence before you, and not upon conjecture or speculation.” This instruction does not in our judgment cure the error complained of. It in fact goes no further than to say to the jury that it must be governed by the...