in statute providing that contributory negligence “may” be considered by jury, “may” held to mean “must,” importing duty to consider contributory negligence
How later courts described this case
- in statute providing that contributory negligence “may” be considered by jury, “may” held to mean “must,” importing duty to consider contributory negligence
- repairing crane used to maintain tracks
Written by the judges who cited it.
The opinion
Rehearing denied October 7, 1930
On Petition eor Rehearing
( 291 P. 1017 )
COSHOW, C. J.
Appellants have filed an earnest and urgent petition for rehearing. The original opinion was written by the late Mr. Justice McBride June 3, 1930. The petition for rehearing complains principally of the amount of the damages awarded and alleges among other things that the opin
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ion mentioned the deafness referred to in the original opinion as indicating the learned justice relied on that as an item of damages. There is no issue in the pleadings on that alleged injury. Defendant argues persuasively that this case is not a proper ease for this court to retry.
Petitioners earnestly contend that a new trial should be granted because of the error found in the instruction as noted in the opinion. The opinion shows that the justice examined the case with great care. It evinces that the issues were considered in detail. Every contention advanced by the petitioners, excepting the item of deafness, was carefully and painstakingly examined and passed on in the original opinion. The item of deafness appears in the evidence as follows:
“ Q. Mr. Donaghy, I will ask yon to state whether or not you have suffered any other disabilities than those you have mentioned subsequent or after your injury. A. Yes, I am deaf in my left ear, can not hear with my left ear.”
Neither the question nor the answer was objected to. Whether or not the item of deafness added to the damages allowed by the jury and allowed by this court is problematical. At any rate the circuit judge was not called upon to rule on that question. No error could be predicated upon the question or answer on the appeal. Defendant waived the error by not objecting to the question or moving to strike out the question and answer.
We are of the opinion that the damages allowed are not excessive. We also are of the opinion that it was a proper case for this court to pass upon under the constitution. The original opinion is adhered to. The petition for rehearing is denied.
Rand, Rossman, JJ., concur.