Scally v. W. T. Garratt & Co.

This is an action for damages for personal injuries. The prayer of the complaint demands a judgment for $15,000, and the jury returned a verdict for $7,500. Judgment was thereupon entered in favor of the plaintiff for the sum so awarded. .

The defendant presents this appeal from said judgment and from the order denying it a new trial.

The appellant claims to be entitled to a reversal of the judgment and order for the reasons, (1) that the damages assessed by the jury are so excessive as to justify the conclusion that the verdict was reached through passion or preju

1. The evidence discloses these facts: The defendant, at the time of the accident through which the plaintiff sustained his injuries, owned and operated, a foundry in the city of San Francisco, and was engaged in the manufacture of machines, nuts, bolts, tools and other mechanical appliances. The plaintiff, a lad then under the age of twelve years, was employed to work in said foundry by the defendant in either the latter part of the month of June or the first part of the month of July, 1905. At that time the plaintiff measured about four feet and eight inches in height and weighed approximately eighty pounds. Prior to his employment by the defendant the plaintiff was without any experience with machinery of any character. At first he was placed by Mr. Griffin, a foreman of defendant, in charge of a machine, the operation of which involved no particular danger of accidents to the operator. On this machine he worked for about two weeks, when he was put to the operation of a machine used for the purpose of “squaring off the tops of faucets.” This machine consisted, among other contrivances, of a very small cutter, and the plaintiff testified that, in its manipulation, he was not required to place his hands anywhere near the knife or cutter. After working on this machine for little less than a week he was “put to wrapping,” at which, with other odd jobs in the nature of errand work around the foundry, he was employed for about three weeks, when he was put to work on the machine, in the operation of which he received the injuries complained of. This machine was used for cutting, squaring and finishing nuts, tools and other mechanical appliances. It contained cutters, circular in form, about two and one-half inches in diameter and were, necessarily, very sharp. The plaintiff testified: “There were two of these cutters on each side, and they were forced together and the material which was to be squared was cut as it run between them; it cut both sides at the same time; those knives were located, I guess, about six inches above the bed of the machine. ’ ’ The machine was run by electricity. There were belts connected with each of the wheels attached to the machine, and they extended up to a wheel where there was a revolving shaft. The power was turned on by means of a

With reference to the effect of the injuries he sustained, the plaintiff testified: “The arm and hand is smaller than the other arm and hand which was not injured. I have ño power at all in the thumb or forefinger-—no sensation—can’t feel anything in those fingers and can’t use them at all; can’t bend them except as indicated. There is no sensation at all in the middle finger.” He said that, prior to the accident, he had been “taking music lessons upon the violin,” but that since his arm and hand were injured “it is impossible for me to further manipulate the violin”; that it is with great difficulty that he can now handle a pen so as to write; that in cold weather he still suffers “terrible pain in the arm.”

The mother of plaintiff saw the injured arm and hand the day following that upon which the accident happened, when the attending physician was dressing the wounds, and she declared that “the arm was in an awful condition; that the flesh was all chopped away, just like it had been chopped off with a knife or something.” She said that the boy had been unable to take lessons on the violin after the accident, and that, after some practice, he got so that he could write by holding a pen between his thumb and little finger. For about a year after he was hurt, she continued, he suffered from occasional fainting spells when the weather was cold.

Dr, Buckley corroborated generally Dr. Haber as to the condition in which the lad’s arm, hand and the muscles of

The plaintiff and his mother and father testified that for two years previously to the time he was injured he had been a pupil of a teacher of violin music, and had acquired such proficiency as a performer on that instrument as that he was able to and did, on several occasions, play in public.

The foregoing statement embraces, in substance, all the important facts established by the evidence.

There are, as stated, but two points urged on this appeal. The sufficiency of the evidence to justify a verdict in favor of the plaintiff is not challenged, the only claim with regard to the evidence being, as seen, that the damages awarded by the jury are so excessive as to compel the conclusion that they were given under the influence of passion or prejudice. (Code Civ. Proc., sec. 657, subd. 5.)

We see nothing in the record from which this court would be warranted in declaring that the jury, in the rendition of their verdict and in arriving at a conclusion as to the amount at which they assessed the damages, were influenced by any other motive than a conscientious consideration of the facts which were adduced before them. The testimony discloses and establishes beyond all peradventure "that the boy was so seriously injured as to permanently impair his ability to pursue during the balance of his life an occupation requiring the exercise of his full, natural physical power; that for two years after the accident he suffered from the effect of his injuries, and that his condition at the time of the

No reviewing court has any right to invade the province of a jury in eases of the nature of the one here by cutting down or diminishing the amount of damages awarded unless it clearly and distinctly appears from the face of the record evidence itself that the sum assessed as the compensation for the injuries sustained is so far beyond a reasonable and just admeasurement of damages, under all the circumstances appearing, as to imperatively force upon the court the fact that such damages could not have been given except under the influence of passion or prejudice.

All the eases say, as is said in Clare v. Sac. Elec. etc. Co., 122 Cal. 506 , [ 55 Pac. 327 ], that “in cases of this character, there

The records in the cases referred to and relied upon by the appellant were no doubt such as to justify the appeal courts in reducing the amount of damages returned by the juries upon the facts established therein, but we perceive nothing in said cases which requires or would justify the cutting down of the damages here, awarded upon evidence disclosing a much different state of facts from that upon which the higher courts felt constrained in those cases to hold the damages to be so excessive as “to shock the understanding and impress no dubious conviction” that they were the result of passion or prejudice. As was said by the late learned Justice McFarland, in the case of Morgan v. Southern Pacific Co., 91 Cal. 501 , 508, 509, [ 29 Am. St. Rep. 143 , 30 Pac. 601 , 602]: “Cases are cited where verdicts for less than the amount awarded in the case at bar have been set aside; but there are many cases where verdicts for larger amounts have been allowed to stand. Two cases exactly alike are not to be found.” See the following cases where the appeal courts refused to interfere with the damages awarded for the loss of limbs, either one or both: Galveston Ry. Co. v. Abbey, 29 Tex. Civ. App. 211 , [ 68 S. W. 293 ]; Kalfur v. Broadway Ferry, 34 App. Div. 267 , [ 54 N. Y. Supp. 503 ]; Williamson v. Brooklyn Heights Ry. Co., 53 App. Div. 399 , [ 65 N. Y. Supp. 1054 ]; Robinson v. Central Pacific R. R., 48 Cal. 410 ($10,000 for loss of an arm); Union Pacific Ry. Co. v. Connolly, 77 Neb. 254 , [ 109 N. W. 378 ]. In Stewart v. Long Island Ry. Co., 54 App. Div. 623 , [ 66 N. Y. Supp. 436 ], "where the plaintiff obtained a verdict for $18,000 for an

In Reeve v. Colusa Gas & Elec. Co., 152 Cal. 110 , [ 92 Pac. 94 ], Mr. Justice Shaw, who wrote the opinion, very aptly says: "It is impossible adequately to describe the suffering and misery—past, present and future—inflicted upon the plaintiff as a consequence of the injury. The verdict is large, the amount of damage was a question for the jury, subject to the supervision and correction of the trial court, and having been passed by the latter without disapproval, it is not for us to say, under the circumstances, that it is excessive.” (See Perkins v. Sunset Tel. & Tel. Co., 155 Cal. 712 , [ 103 Pac. 190 .])

We think that common experience justifies the observation that either the loss of, or an injury to, an arm in such manner as to permanently disable it, thus rendering it practically useless, to one compelled to earn a livelihood by manual labor, is worse and of infinitely greater disadvantage to the person so injured than would be the loss of a leg. In this case, if the testimony of the witnesses for the plaintiff be true, and it must, in view of the verdict, be so accepted by this court, the consequence of the injury inflicted upon the plaintiff by the defendant’s negligence is, ■ as we have before said, to permanently incapacitate him, to a great extent, for the performance of manual labor or for the exercise of any other employment in which the full normal power of both arms and hands is required. And, as the New York court says, in Vredenburgh v. New York Cen. & H. R. R. Co., 58 Hun, 607 , [ 12 N. Y. Supp. 18 ], where the plaintiff was given damages in the sum of $6,500 for an injury to her right arm, so it is true here: "If the jury believed the testimony introduced by the plaintiff respecting the extent and permanency of her injuries, we can very well see how the verdict was made as it was,” the judgment therein being affirmed.

2. The instructions given by the court which it is claimed misstate the rules by which the jury were authorized to be

“If you believe from the evidence that plaintiff sustained the injuries complained of in his complaint, as amended, through the carelessness and negligence of the defendant, without negligence on his part, then you should find for the plaintiff, Donald Scally, and assess his damages in such sum as you believe, under all the circumstances of this case in evidence, the plaintiff ought to recover, not exceeding the amount claimed in his complaint, as amended, to wit, $15,000. ’ ’

“If you believe from the evidence that the plaintiff, Donald Scally, is entitled to a verdict against said defendant, you must assess the amount of damages at a sum not to exceed the amount prayed for in his complaint, as amended, and in so doing, you have a right to consider the character of the injuries, if any, sustained by plaintiff, the pain and suffering, if any, endured and which will be endured, if any, as the result of said injuries, if any, sustained by him, the effect of such injuries, if any, upon said plaintiff, the permanent character of said injuries, if any, if such injuries are permanent and what, before the injuries complained of, was the health and physical condition of the plaintiff. From all those elements, you will resolve what amount will fairly compensate the plaintiff for the injuries sustained by him, if any, provided you find in favor of the plaintiff.”

Counsel for the appellant call our attention to several California eases in which it is held that instructions, phrased in language in some respects similar to that of the instructions complained of here, were erroneous. In illustration of the pertinency of this contention, and for the purpose of showing the similarity of the two instructions, counsel, in their brief, parallel certain language of an instruction given in the case of Trabing v. Cal. Nav. Co., 121 Cal. 143 , [ 53 Pac. 646 ], which they intimate was condemned by the supreme court as not containing a correct statement of the law, with the italicized portion of the first quoted of the foregoing instructions given in the present case. In the case cited, the instruction, among other declarations, contained the following: “ . . . then I charge you, your verdict will be in favor of plaintiff' for such damages as under all the circumstances of the case disclosed by the evidence appearing to be just, not exceed

If the trial court in that case had clearly instructed the jury that, under the facts as established by the evidence, they should not consider the question of exemplary damages, as such question was not involved there, the instruction which appellant declares that the court condemned would have been proper in that case, for then, from the whole charge, it would clearly appear that the jury were properly restricted by the court in the matter of the assessment of damages to the consideration of the single question, what amount, “under all the circumstances of the ease disclosed by the evidence,” appeared to constitute just compensation for the damages sustained.

In the case at bar, no such negligence was imputed to the defendant as would warrant the infliction of a punishment by way of damages in excess of the amount which would, in the judgment of the jury, constitute just compensatory damages. Nor was any claim made by the plaintiff that punitive or exemplary damages should be imposed. Besides, the court in plain and perspicuous language instructed the jury that if the negligence of the defendant was the proximate cause of the injuries, if any, sustained by plaintiff, their verdict must be in favor of plaintiff “for such damages as you shall find from the evidence he has sustained, not exceeding the amount claimed in plaintiff’s complaint.” Thus it clearly appears that the court distinctly told the jury that they were, in case

The instruction given by the trial court and condemned by the supreme court in Fries v. American Lead Pencil Co., 141 Cal. 613 , [ 75 Pac. 165 ], is radically different from the one assailed here. It reads in part: . then it would be your duty to give the child such amount of damages as you feel it is entitled to, not exceeding the amount prayed for in the complaint.” In its criticism of this instruction, the supreme court says: “To say that the jury may award such damages-as they feel the plaintiff is entitled to is the equivalent to telling them that they may give play to their emotions of' sympathy for the injured child, emotions which, eminently proper in themselves, can have no just place in fixing an award of actual damage.” In the instruction in the case at bar, the court said to the jury, as we have seen, that the negligence of the defendant being shown, and no fault of the plaintiff appearing, they should “assess the damages in such, sum as you believe, under all the circumstances of this case

The specific objection to the second instruction complained of is that the court, in setting forth the elements which the jury should take into account in assessing the damages, declared that, in addition to the immediate effect of the injuries sustained by plaintiff, they should consider “the pain and suffering which will be endured, if any, as the result of said injuries,” etc. The vice of the instruction, it is insisted, is involved in that portion thereof in which the jury were thus told that any pain and suffering, if any, which the plaintiff will endure in the future as the result of his injuries constitute a proper element to be considered in fixing the damages, the argument being that this language authorized the jury to fix the damages, so far as the future effect of plaintiff’s injuries was concerned, not alone upon what the evidence might show, with reasonable certainty, would be his future suffering, etc., but also upon what the jury might, by means of mere speculation or conjecture conclude that the extent of his future pain and suffering might be. We do not so understand the language of the instruction. That plaintiff was entitled not only to such damages as the evidence established that he had suffered, but also to such further damages as the evidence disclosed that he would suffer in the future, is a proposition no one will dispute. If, therefore, the evidence here disclosed with reasonable certainty the extent of the suffering, if any, plaintiff would endure in the future as the result of his injuries, the plain duty of the jury was to consider such evidence in fixing the amount of the damages. And all that the instruction - in effect declares is that, if the evidence was such as to enable them to ascertain and determine what the future pain and suffering of the plaintiff will be, then they should consider the same as one

The instruction here is not like that condemned in the case of Melone v. Sierra Ry. Co., 151 Cal. 113 , [ 91 Pac. 522 ], et seq. In that case the trial court instructed the jury that an element of damages “was the pain and anxiety that he suffered or may suffer by reason of his injuries.” This instruction was declared to be erroneous, because the auxiliary verb as there employed necessarily expressed the idea that the jury could indulge in speculation or conjecture as to whether and to what extent the complaining party would suffer in the future as the result of his injuries. Counsel for the appellant see no distinction between the two instructions, contending that the words “may” and “will” are used interchangeably and are commonly so understood. Colloquially these auxiliary verbs may be so used and understood, but in grammatical construction they perform entirely distinct offices, and, therefore, convey essentially different meanings, the one importing a mere possibility or vague or indefinite speculation as to the existence of some fact or thing, the other the unqualified or unconditional existence of some fact or thing; or, in other words, the one meaning an existence in possibility and the other an existence in actuality. A sick patient, for illustration, would much prefer to have his physician say, “You will recover,” to the expression of the doubtful prognosis, “You may recover.” Nor can it be assumed that the word “will,” as employed in the instruction under review, was so used by the court and understood by the jury as an auxiliary verb in any other than its true grammatical sense. The instruction here and the one in the Melone case are, therefore, totally dissimilar, and obviously, as stated, convey entirely different meanings.

The cause seems to have been carefully and fairly tried, and, as before declared, the evidence abundantly supports the verdict and the amount of damages returned. . In fact, when the youth of the plaintiff and the dangerous machine upon which he was put to work without previous experience in its manipulation, and without having been specially warned with regard to the danger involved in its operation, are considered, we think, in view of the seriousness and permanency

The negligence of the defendant is not disputed on this appeal, nor is there any claim here of contributory negligence on the part of the plaintiff.

No reason has been disclosed why the judgment and order appealed from should not be allowed to stand.

They are, therefore, for the reasons herein given, affirmed.

Chipman, P. J., and Burnett, J., concurred.

A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on October 15, 1909.