York v. General Utilities Corp.

Christianson, J.

-(concurring specially). In this ease the defendant challenged the sufficiency of the evidence by motion for a directed verdict at the close of all the testimony. The opinion prepared by Mr. Justice Robinson in effect holds that such motion should have been granted. While there is much force to this contention, I am not entirely clear that it can be said as a matter of law either that there was no evidence of negligence on the part of the defendant, or that the plaintiff was guilty of contributory negligence as a matter of law. Nor do I believe that it can be said as a matter of law that the verdict is excessive. I agree with Mr. Justice Robinson, however, that the court erred in its instructions. Not only did the court instruct the jury that the jury might allow damages for injuries “likely” to be permanent, and for pains which plaintiff was “likely to suffer in the future,” as stated in Mr. Justice Robinson’s opinion, but it refused to give a requested instruction to the effect that a verdict for damages cannot be based upon speculation or conjecture. The court also refused to instruct the jury (pursuant to request for such instruction) as to the duty incumbent upon a person in the exercise of due care to select a safe, rather than a dangerous, way of performing a duty, where both a safe and an unsafe way are available. I believe a proper instruction upon this subject should have been given. Hence, I believe, that the ■case should be reversed and a new trial had.