Walker v. Southern Pacific Co.

MELVIN, J.

Plaintiff, who was a railway mail clerk, was injured in an accident due to the negligence of defendant’s servants. He recovered judgment for four thousand dollars. From said judgment and from an order denying its motion for a new trial defendant appeals.

The two points urged by appellant are: 1. That the dam- 1 ages were excessive, and 2. That the court erred in instructing the jury. Without going at length into the testimony relating to plaintiff’s injuries, we may say that it is sufficient to establish his theory of the case and to support the verdict. According to the testimony of experts the drum of plaintiff’s left ear was perforated and he was permanently deaf in that ear. He testified that before the accident he could hear perfectly, and although the experts differed as to the origin of his deafness and the period of its existence, we think that there was sufficient evidence to justify a conclusion of the jury that it was produced by scalding water, which was thrown upon his face and head during the accident. Doctor Pepper discovered a disturbed condition of the articulation of the ninth rib. He also testified that cicatricial tissue on the right arm, resulting from plaintiff’s injuries, impeded the action of the muscles to such an extent that plaintiff could never again use that arm for quick or delicate work, and that his strength in that arm would always be impaired. From such evidence the jury would have been justified in concluding that plaintiff could never again follow his business as a mail clerk. Plaintiff was forty-three years old at the time of the trial. His salary at

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the time of the accident was fifteen hundred dollars per annum. In view of the above facts we cannot say that the verdict of four thousand dollars was excessive.

The court instructed the jury upon the various elements of damage which they might properly consider in reaching their verdict and one of these was “the pecuniary loss likely to be sustained by him (plaintiff) during life.” Appellant cites

Melone

v.

Sierra Railway Co.,

151 Cal. 116, [91 Pac. 522], as conclusive of the matter. ' In that case the court held two certain instructions to be erroneous. In one the jurors were told that they might fix damages in favor of plaintiff in any “such reasonable sum as the jury shall award him on account of the pain and anxiety he has suffered or