Storrs v. Los Angeles Traction Co.

HARRISON, J.

The plaintiff’s intestate brought this ■action to recover damages for personal injuries sustained, through the negligence of the defendant, while being carried as a passenger upon one of its cars in the city of Los Angeles. The cause was tried before a jury, and a verdict rendered in favor of the plaintiff for the sum of two thousand dollars. After the rendition of the verdict and the entry of judgment thereon, the plaintiff died, and his executor was thereupon substituted as plaintiff in the cause, under an order of the superior court. The defendant moved for a new trial, which was denied, and from this order and the judgment defendant has appealed.

The court instructed the jury that they were not at liberty to give punitory damages, but that they could award the plaintiff

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only such actual damages as the evidence shows to a reasonable certainty he has sustained by reason of the accident of which he complains.” It also gave to the jury the following instruction: “If the plaintiff is entitled to recover, the measure of his recovery is what is denominated compensatory damages,— that is, such sum as will compensate him for injury he has sustained. The elements entering into damage are the following: 1. Such sum as will compensate him for the expenses he has paid or incurred in caring for and nursing him during the period that he was disabled by the injury, not exceeding the amount alleged in the complaint. 2. The value of his time during the period that he was disabled by the injury; 3. If

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the injury has impaired the plaintiff’s power to earn money in the future, such sums as will compensate him for such loss of power. 4. Such reasonable sum as the jury shall award him on account of pain and anxiety he has suffered by reason of his injury. The first two of these elements are the subjects of direct proof, and are to be determined by the jury on the evidence they have before them. The third and fourth elements are from necessity left to the sound discretion of the jury, but the damages, in all, cannot exceed the amount alleged.”

The correctness of this instruction is challenged by the appellant, upon the ground that there was no evidence before the jury of the pecuniary value of the time lost by the plaintiff, or from which the jury were authorized to estimate his earning capacity.