Strosk v. Howard Terminal Co.

WOOD (Fred B.), J.

Plaintiff brought this action to recover for a permanent injury to his hand, incurred when he tripped over a steel plate on an unlighted portion of defendant’s dock while returning home from his employment as a relief engineer aboard a ship berthed at the dock. The jury awarded him damages in the sum of $16,000, which was reduced to $14,000 by the trial judge, with the consent of plaintiff, as a condition of the denial of defendant’s motion for a new trial.

In support of its appeal the defendant claims an instruction on the measure of damages was prejudicially erroneous and that the judgment as reduced is still excessive.

The questioned instruction read as follows: 1 ‘ The fact that plaintiff was not in receipt of salary or wages of a chief marine engineer at the time of the accident does not deprive him of the right to compensation for loss of his earning capacity, since it was what he was capable of earning rather than what he was actually earning that is to be considered by the jury. If by reason of the injury he has become unable to

[800]

perform the labor which he was accustomed to transact or perform prior to the injury, he is entitled to recover damages for the effect of the injury upon his earning capacity. ’ ’ This instruction, as an abstract proposition of law, is unobjectionable. (See

Hicks

v.

Ocean Shore R., Inc.

(1941), 18 Cal.2d 773, 784 [117 P.2d 850];

Storrs

v.

Los Angeles Traction Co.

(1901), 134 Cal. 91, 93 [66 P. 72].) Defendant claims that by this instruction the court put undue emphasis upon “chief marine engineer” and thereby limited the jury to consideration of plaintiff’s earning capacity as a chief marine engineer whereas there was evidence from which the jury could have inferred that plaintiff no longer was regularly employed as a seagoing chief marine engineer and was engaged as a relief engineer of ships while in port, at considerably less compensation.