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Cutler v. P. S. P. M. Co.

December 31, 1911

W. R. CUTLER, RESPONDENT, V. PITTSBURG SILVER PEAK GOLD MINING COMPANY (A CORPORATION) AND HARRY KEANE, APPELLANTS.


Appeal from the District Court of the Fifth Judicial District of the State of Nevada, Nye County; M. R. Averill, Judge.

L. A. Gibbons and Bartlett & Thatcher, for Appellants.

Berry & Cole, W. B. Pittman, and Summerfield & Curler, for Respondent.

By the Court, Sweeney, C. J.:

This action was brought against the above-named defendants to recover the sum of $15,000 damages alleged to have been sustained by the plaintiff whilst an employee of the defendants, by reason of defective insulation of an electric wire caused by defendants' negligence, and the negligent and careless placing of said wire, which electric wire was under the control of defendants in the building

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of defendants on which the plaintiff was employed as a carpenter; and for the further sum of $500 for expenses incurred by plaintiff for medical aid and medicine, and for his costs of suit.

The trial came on regularly for hearing at Tonopah, Nevada, before a jury. After the case was submitted, a verdict was returned in favor of the plaintiff in the sum of $15,000. A motion for a new trial was regularly made and denied, and from the order denying defendants' motion for a new trial, an appeal to this court was perfected. The assignments of error we will dispose of in the order in which they are taken.

Appellants first assign as error plaintiff's proposed instruction No. 10, which, as modified and given by the court below, reads as follows: “The court instructs the jury that, if they believe from the evidence that on or about the 14th day of May, A. D. 1908, the plaintiff, W. R. Cutler, was in the employ of the defendant corporation, the Pittsburg Silver Peak Gold Mining Company, as a carpenter, and that while in the discharge of his duty as such carpenter he was then and there using ordinary care and prudence for his safety while so employed, and while in the course of such employment and while in the performance of his duty, it became necessary for him to tear down a certain piece of corrugated iron sheeting from the compressor house of the defendant corporation, and that while thus engaged, and without negligence on his part, he was injured by being shocked and burned by a current of electricity which reached him by reason of a defect in the insulation of an electric wire, and the negligent and careless placing of said wire, then and there under the control of the defendant corporation, which broken and defective condition of the insulation of said wire and which negligent and careless placing of said wire was due to the failure of the defendant corporation to exercise ordinary care to maintain said wire in a reasonably sound and safe condition, and to place said wire in a reasonably safe place, of which broken and defective condition of the insulation of said wire and of which negligent and care

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less placing of said wire the defendant corporation had actual knowledge, or, with the exercise of ordinary care and caution, could have discovered such broken and defective condition of the insulation of said wire, and such careless and negligent placing of said wire, within sufficient time to have repaired the broken and defective insulation and corrected the negligent and careless placing of said wire, or could have warned plaintiff concerning the same, and did not do so, and that said wire was then and there in the possession and under the control of the defendant corporation, and that, in the performance of his duty, and without negligence on his part, and not having had the opportunity of knowing the defect in the insulation of said wire or the negligent and careless placing of the same, the plaintiff was injured, as set forth in his complaint and the amendments thereto, by coming in contact with the current of electricity from said wire, as aforesaid, and that the said defective condition of the insulation of said wire, together with the careless and negligent placing of the same, was the proximate cause of the plaintiff's injury, then I instruct you that it is your duty to find a verdict for the plaintiff in a sum not greater than $15,000.”

It is maintained by the appellants that this instruction is reversible error because: “It instructs the jury that, if they find the facts enumerated in the instruction to be true, it is their duty to return a verdict for the plaintiff in the sum of $15,000. It totally ignores the element of damage to the plaintiff, and directs a verdict for plaintiff, notwithstanding the plaintiff may have suffered no damage. It assumes as a matter of fact that the insulation of the electric wire was defective, and that it was negligently and carelessly placed. It instructs the jury that they may find the defendants guilty of negligence other than that alleged in the complaint.” With none of these reasons assigned by counsel for appellants are we able to agree, when applied to the instruction in the light of the record, to make the giving of said instruction reversible error. A simple reading of the instruction, we think,

[34 Nev. 45, Page 51]

will not sustain the strained interpretation placed on it by appellants' counsel, in support of which they have ingeniously tortured a plausible and interesting, though sophistical, argument.

As we construe the plain and unambiguous language at the end of the instruction, viz, “that it is your duty to find a verdict for the plaintiff in a sum not greater than $15,000,” the jury was in no way obligated to find a verdict in this specific amount, but, as specifically stated in the instruction, if the jury find from the evidence the elements making the defendants liable in damages previously stated in the instruction to be true, then it is their duty to find a verdict they may believe proper, ranging from one cent to the limit of $15,000, but no more. It plainly appears from the instruction excepted to that the premises therein state all the elements which, if true, would warrant the finding of a verdict for the plaintiff, and legally it would then become the duty of the jury to render a verdict in such amount of damages as they believed to be just and proper under the evidence and instructions of the court. We believe the court very properly stated to the jury the maximum damages they might be allowed to assess, if they found the evidence such that the plaintiff was entitled to a judgment.

We do not believe that the decisions cited by counsel in support of their contentions, in respect to this assignment of error, are sound, either in law, logic, or reason, or that the rule contended for imperatively commands the jury to bring in a verdict for a specified sum of this kind to be sound. We rather believe the rule enunciated in Cyc., vol. 13, at page 235, to correctly state the law. It reads as follows: “An instruction must limit plaintiff in his recovery to such damages as are the effect of the injury complained of, and is erroneous if based upon evidence offered which is unauthorized by the pleadings. Likewise a refusal to instruct the jury to disregard damages shown by the evidence unauthorized by the pleadings is error. So, too, regardless of the amount of damages which the evidence submitted to the jury would justify, an

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instruction which does not clearly limit the recovery of damages to the amount claimed in the petition is erroneous.”

In volume 6 of Thompson's Commentaries on the Law of Negligence, the rule is laid down as follows: “An instruction that, if the jury find for the plaintiff, they shall award him such damages, not exceeding a specified amount, as they may think, under the testimony of the case, he is entitled to, has been held not subject to the criticism that it indicates that under the issue joined the jury might award damages in excess of the compensatory damages to which he may have proved himself to be entitled.” (Thompson's Commentaries on the Law of Negligence, vol. 6, sec. 7281, p. 314.) And again, at page 966 of the same work, it is said: “An instruction telling the jury that they could not award more than the amount demanded in the complaint, and naming this amount, is not erroneous on the ground that it makes the amount demanded unduly prominent.”

In Watson on Damages, sec. 321, the author, in referring to the subject-matter under discussion, says: “A charge that the jury may not give the plaintiff more than the amount claimed in his declaration, specifying it, is not objectionable as intimating that the jury should award such amount, or any considerable sum.”

Our own supreme court, in the case of Christensen v. Floriston Pulp and Paper Company, 29 Nev. 571, in recognition of the rule herein sustained, said: “The amount of damage alleged cannot be taken into consideration by the jury in estimating the award, excepting in so far as it fixes a maximum beyond which the jury may not go..”

The instruction complained of we do not deem to have prejudiced the rights of the appellants, and is amply sustained by the authorities. In support of our position, see, also, Stoll v. Daly M. Co., 19 Utah, 271, 57 Pac. 300; Smithson v. S. P. Co., 37 Or. 74, 60 Pac. 914; Thomas v. Gates, 126 Cal. 8, 58 Pac. 315; Chicago R. Co. v. Knerim, 152 Ill. 458, 39 N. E. 324, 43 Am. St. Rep. 259; Pennsylvania Company v. Paul, 126 Fed. 160, 62 C. C. A. 135.

Appellants assign as error plaintiff's instruction No.

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11, which reads as follows: “The court instructs the jury that, if you find from the evidence that plaintiff, W. R. Cutler, is entitled to recover from defendant the Pittsburg Silver Peak Gold Mining Company for injuries as alleged in the plaintiff's complaint, you are to award the plaintiff such damages not to exceed the sum of fifteen thousand ($15,000) dollars, which, in your opinion, will compensate him for the pecuniary damage proximately caused him by the injuries complained of. In assessing such damage you have the right to consider the following elements as a basis for your assessment: (1) What, before the injury complained of, was the health and physical condition of the plaintiff? (2) What, after the injury, was the health and physical condition of the plaintiff? (3) The loss of earnings of the plaintiff, if any, caused by the injury. (4) The loss of earning capacity of the plaintiff in the future, if any, caused by the injury. (5) The effect, if any, caused by the injury upon the ability of the plaintiff to engage in his usual occupation. (6) The pain and suffering, if there were pain and suffering, endured by the plaintiff as the result of the injury sustained by him, if you find that such injury was sustained. (7) The character of the injury as to being permanent or otherwise, if there was an injury sustained by the plaintiff. (8) The ability of the plaintiff to care for himself before the injury, if there was an injury, as compared with his ability to care for himself after the injury. (9) The age of the plaintiff at the time of the infliction of the injury, if you find the plaintiff suffered an injury. From all of these elements you will resolve what sum will fairly compensate the plaintiff for the injury sustained by him.”

Counsel for appellants assign instruction No. 11 as error for the following reasons: “That if it properly presented to the jury the measure of damages, it conflicts with instruction No. 10 previously given. That it instructs the jury only as to what elements of damage it may consider only in case it determines that the plaintiff is entitled to a verdict against the Pittsburg Silver

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Peak Gold Mining Company. That it assumes that plaintiff has been damaged, and does not require the jury to find, as a matter of fact, that he has been damaged.”

Entertaining the views we do, contrary to the contentions of the appellants that instruction No. 10 is erroneous, we cannot say that there is any material conflict in the instructions complained of. All instructions to a jury should be read in the light of each other and considered in their entirety, when determining whether a portion of the instruction is erroneous, or, by reason of a conflict, or otherwise, is calculated to mislead the jury; and, where separate instructions are sound in law, even though they may not be as complete as they might be made to be, but if read together they are consistent and state correct principles of law, and are not calculated to mislead the jury, they will not be disturbed as reversible error. Of course, where instructions are conflicting and either is erroneous in law and ...


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