McMurray v. City of Sioux City , 150 Iowa 257 ( 1911 )

Per Curiam.

An obstruction in one of tbe appellant’s .streets threw the plaintiff from his buggy and injured his wrist. There is no question as to the defendant’s negligence in permitting the obstruction of its streets, and the only questions presented for our determination arise over the instructions given by the court.

1. personal damages: mstruction. The appellant complains of the seventh and twelfth paragraphs of the instructions. It is said that the seventh paragraph authorized a recovery “on account of any injuries which he had shown he received as you find from the evidence to be the proximate regup.. ,0f injuries.” This paragraph of the instructions did not attempt to tell the jury what the measure of the plaintiff’s recovery would be. It was directed to the subject of the defendant’s negligence, and told the jury what would constitute negligence and contributory negligence under the circumstances, and the only reference made to damages was in the concluding part of the paragraph, which calls attention to the fact that the plaintiff could only recover damages which were shown to be the proximate result of the injuries received by him at the time in question; and we do not think it could have had any influence on the jury in determining the amount of plaintiff’s- recovery.

2. Same. The twelfth paragraph of the instructions is the one that the appellant most vigorously assails. It is said that it authorized a recovery for the loss of the use of plaintiff’s hand and for the expense of medical attendance, and permitted a recovery of double damages. There was no evidence -of medical expense, nor was there any evidence tending to shoiV the value of the use of the plaintiff’s injured hand, and the appellant’s criticism of this paragraph of the instructions is based upon the lack of such evidence. The instruction is not as clear and concise as it might well have been made, but we, are constrained to hold that, when it is considered as a whole, it fairly directed the jury that the plaintiff could only recover for tbe pain and suffering tbat he bad already endured on account of said injuries and tbe pain and suffering tbat it was reasonably apparent from tbe evidence be would endure in tbe future. The jury was fold tbat in considering the question of damages they might take into consideration “tbe nature and extent of tbe injury, tbe pain and suffering, if any, endured by him as a consequence of such injury, tbe character of tbe injury, whether permanent or otherwise, and allow him such sum as under tbe evidence will fairly and reasonably compensate him for tbe injury, pain, and suffering actually endured by him, and such as it is reasonably apparent from tbe evidence be will endure in tbe future.” It is evident tbat tbe thought of tbe 'instruction was tbat, there not being any evidence of tbe value of tbe use of tbe band nor .any evidence as to medical expense, tbe only thing tbat tbe jury could consider under tbe record would be tbe pain and suffering already endured, and tbat might be endured in the future. This thought is emphasized by the following language in tbe same paragraph: “If tbe plaintiff recovers any damages, tbe extent of bis recovery will be measured by tbe injury caused by bis being' jerked or thrown from bis buggy and tbe pain and suffering endured in consequence thereof, but pain and- suffering not being susceptible of exact measurement tbe amount to be allowed therefor is of necessity left to your sound judgment and discretion, to be assessed with care, judgment, and sound discretion in tbe light of all tbe evidence, and tbe facts and circum-stances shown upon tbe trial.” In tbe language last quoted, the trial court called tbe jury’s especial attention to the subject of pain and suffering, and evidently intended tbe jury to understand tbat no recovery could be bad under tbe evidence except for tbe pain and suffering tbat bad been proven in the case.

Tbe claim is made tbat the instruction in which tbe jury was told tbat plaintiff might recover for damáges caused by being “thrown from the buggy and the. pain and- suffering endured in consequence thereof” authorized a recovery for double damages. We (do not believe that the jury could have construed the language used into á warrant for allowing the plaintiff damages which had not been proven and in addition to damages on account of pain and suffering. If we are right in our .construction of the paragraph as to damages other than for pain and suffering, it must certainly follow that the jury did not award double damages.

3. Damages excessive verdict. The appellant also contends that the verdict is excessive. The plaintiff recovered $1,000. The evidence shows without any dispute that his wrist was so badly injured as to cause the paralysis of a part of his hand ' and of two fingers. There is some- question whether the injury to the hand is of such a nature that there may not be a recovery, but at the time of trial the only physician who testified said that the injury was then manifest and that he could not tell whether it would be permanent'or not. He said it might be. If it be true, as-the jury may have found, that the plaintiff has permanently lost the use of two fingers and a part of the hand, and that its condition may result in future pain and suffering, we are not prepared to say that the verdict is any too large. We reach the conclusion, therefore, that the judgment should stand; and it is affirmed.