James v. Hayes

Citations

• 63 Kan. 133
• 65 P. 241

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>1. Personal Injuries — Accident Distinguished — Instruction Approved. The boundary between two adjacent lots was in dispute. The owner of one of the lots was severely injured by receiving in his body a charge of shot from a gun in the hands of the other, and brought an action to recover his damages therefor. The defendant claimed that the gun was accidentally discharged. In such action it is not error to give the following instruction, the facts as therein predicated being fairly shown by the evidence: “A party is not generally liable in damages for an injury which is the result of an accident, and if you believe from the evidence in this case that plaintiff was injured, but that the injury received was the result of an accident, then plaintiff cannot recover. But if you find that at the time of the injury received by plaintiff the line between plaintiff’s and defendant’s properties was in dispute, plaintiff claiming said line to be further south than where defendant claimed it to be; that plaintiff went upon said disputed tract of land to determine where a certain post had heretofore been located, and while there in the act of digging upon said strip of land defendant procured a loaded shot-gun, pointed it toward plaintiff and discharged it, and plaintiff was injured by reason of the discharging of the gun by defendant, then I instruct you that defendant is liable in damages to plaintiff for any injury he received on account of the discharging of the gun, and it makes no difference whether the defendant intended to hit the plaintiff or not.”</p> <p>2. -Measure of Damages. It is impossible to fix any rule by which damages compensating for pain and suffering can be estimated, or for ascertaining what will exactly repay for permanent injury. The amount to be awarded must be left to the enlightened consideration of the jury, under all the evidence, and a verdict therefor will not be set aside unless the court can say that the amount the