Fairchild v. Cal. Stage Co.

Baldwin, J. delivered the opinion of the Court— Terry, C. J. concurring.

This action was brought to recover damages for certain injuries sustained by the plaintiff by the careless overturning of a stage-coach in which she was a passenger’. A verdict was rendered for the plaintiff for two thousand two hundred and fifty dollars damages. A motion for a new trial was made and overruled.

The main questions arise on certain instructions given and refused. It is not deemed necessary to notice at large the points —that the evidence did not warrant the verdict, and that the damages are excessive. We have read the body of proofs in the case, and think that they make a proper subject of inquiry for a jury, whose verdict either way we would not disturb. Bor, if the injury to the plaintiff be anything like as great as some of the medical witnesses suppose, is there any pretense for the interposition of this Court, on the ground of a gross mistake, or palpable abuse of discretion of the jury in assessing damages.

We proceed to consider the instructions : “ It is objected that the second instruction asked by the plaintiff should not have been given, because it assumes the fact of the recklessness of the driver,” etc. But this is a misapprehension on the part of the counsel. We understand the charge to bo hypothetical.

2. The third instruction is objected to, but it seems that instruction was refused.

3. The fourth instruction is objected to, because it asserts that the plaintiff, if entitled to recover, may recover damages for “ mental anguish.” We cannot see why compensation should not as well be given for pain of mind as pain of body.

4. The seventh instruction is objected to, because it assumes deficiencies which did not exist. We think there is nothing in the objection.

It is next objected that the Court erred in not giving the first and fifth instruction asked by the defendant.

[602]The first is in these words : “ That the proprietors of a stagecoach do not warrant the safety of passengers in the character of common carriers.”

This was refused. It is evident that this refusal was not based upon the denial of the proposition assorted, for the Court had already, in a variety of forms, given clear indications of a different opinion, and afterward, in several distinct instructions, gave, in effect, and in clearer and more concrete form, the proposition asked, to the jury.