Madden v. Columbia & Nehalem River Railroad

200 P. 1038, 101 Or. 562, 1921 Ore. LEXIS 185

• Court: Oregon Supreme Court
• Decided: October 11, 1921
• Status: Published

Opinion

BEAN, J.

The only assignment of error presented for consideration upon this appeal relates to an instruction of the court arising in the following manner. The trial court explained the issues and defined negligence, and the degree of care necessary to be observed by a common carrier of passengers. As to the measure of the damages the court charged the jury as follows:

“The measure of damages in this case is the injury and loss actually suffered and sustained by reason of the negligence of the defendant railway company.

“The plaintiff, if you find he is entitled to anything from the evidence, is entitled to such sum or sums of money as will fully compensate him for all loss of wages and pain and suffering endured by him.

“In estimating damages, it is proper to consider loss of time and whatever bodily pain the damage may have caused to the plaintiff.

“If you find that the plaintiff did suffer pain on account of the injuries, and if you further find from the evidence, that the injuries of the plaintiff, Martin Madden, are of a permanent nature, you should compensate him by finding’ for the plaintiff such a sum as will compensate the plaintiff on account of the permanency of his injuries and the consequent decrease in his earning powers.”

As shown by the bill of exceptions, after the instructions to the jury counsel for defendant saved an exception in the following language:

“Mr. Yeazie: If the court please, I desire to except on behalf of the defendant to the instructions relating to possible permanent injuries on the ground that I doubt whether there be evidence in the case which would justify a finding of permanent injury.”

1. As we understand the objection to the charge to the jury, the meaning intended to be conveyed to the mind of the court was that there was a doubt in the mind of counsel as to whether there was evidence in the case which would justify the jury in a finding of permanent injury. The learned counsel did not express a doubt that the court should submit the question of permanent injury to the jury, or make any objection thereto. As to the language “relating to possible permanent injury,” we have read the -entire charge of the court to the jury, and do not find the word “possible” therein, nor that the jury was allowed to compensate plaintiff for a possible injury. On the other hand, the jury was instructed that if they found for the plaintiff, the measure of damages was the injury and loss actually suffered.

2, 3. It appears there was a direct conflict in the testimony between the expert witnesses on behalf of defendant and the plaintiff himself, as to the extent of Ms injuries. Plaintiff’s injured leg was exhibited to the jury, and his back and hip examined and manipulated by the doctors, both of whom were of the opinion that the injuries were not permanent, although one of the physicians testified that where symptoms are subjective it necessarily follows that the doctor must be governed by the patient’s statements, if any cause can be found for the symptoms. Therefore under the allegations of the complaint, in the absence of an objection to submitting the question of a permanent injury to the jury, and in the absence of any request on behalf of defendant to withdraw from the jury the question of permanent injury, we do not think there was any error on the part of the trial court in so submitting the question. If there was any error in this connection it was invited or sanctioned on behalf of defendant. From the amount of the verdict it does not appear that the jury found the plaintiff was permanently injured. Therefore the defendant has no reason to complain in this regard.

4. The testimony tended to show that plaintiff was seriously hurt by being struck by the log. We cannot say as a.matter of law that the damages awarded by the jury are excessive.

We approve the rule as stated by Mr. Justice Brown in Galveston etc. Ry. Co. v. Powers, 101 Tex. 161, 164 (105 S. W. 491, 493):

“Neither expert witnesses nor the jurors may be turned loose in the domain of conjecture as to what may by possibility ensue from a given statement of facts. The witness must be confined to those which are reasonably probable, and the verdict must be based upon evidence that shows with reasonable probability that the injury will produce a given effect.”

5. If from the testimony it can be said that there is a reasonable probability of an injury being permanent then the question may properly be submitted to the jury: Rugenstein v. Ottenheimer, 70 Or. 600, 608 (140 Pac. 747); Ahonen v. Hyszko, 90 Or. 451, 459 (175 Pac. 616, 177 Pac. 63).

We have carefully examined the cases cited by defendant, among them Lang v. Camden Iron Wks., 77 Or. 137 (146 Pac. 964); Henry v. Postal Telegraph Co., 100 Or. 179 (197 Pac. 258); Albright v. Keats, 85 Or. 134 (166 Pac. 758). We find no conflict in the record of the trial of the present case with the rules enunciated in the cases mentioned.

Finding no error in the record, the judgment of the Circuit Court is affirmed. Affirmed.

Burnett, C. J., and Johns and Brown, JJ., concur.