Nichols v. Railroad. the peace, and that the city judge in this case was not disqualified to appear herein as one of counsel by virtue of his official position. The appellant also contends that the court erred in permitting, over the objection of the defense, the introduction of evidence to the effect that the plaintiff's 2 memory was impaired as a result of the injury received by the accident. It is insisted that loss of memory or impairment of mind by which the memory might be effected, is not a natural, ordinary, or probable result of an injury from a railroad accident, and therefore is an injury for which there is no liability. This position is not sound as applied to this case. The plaintiff, inter alia, alleged in her complaint that in consequence of the collision she was "seriously injured, bruised, and wounded in her right side, right leg, arm and hand, and in her back and abdomen, so that she had a miscarriage, and has otherwise become sick, sore, and disabled physically, mentally, internally, and permanently." The defendant thus had notice that the plaintiff claimed, as one element of damage, an impairment of her mental powers, as a result of her injury, and under that plea the evidence in question was clearly admissible. Having had such notice by proper plea, the defendant was bound to expect evidence by which an effort would be made to trace the impairment of the memory to the negligent act of which complaint was made, and the defense could not, under the circumstances, avoid the effect of such evidence by objecting to its introduction. That the act which caused the collision was one of negligence does not seem to be controverted, and hence the injured person was entitled to damages for all injurious consequences, including impairment of memory, which naturally flowed from such act, and of which she was the recipient, without fault on her part. A similar question was before this court in Croco v. O. S. L. R. Co., 18 Utah, 311, 320, 54 Pac. 987, 44 L. R. A. 285, and it was there said: "When the defendant was informed of the injury to plaintiff's head and back, Nichols v. Railroad. and that he was greatly and permanently injured in his body, and internally injured in his back and abdomen, by reason of which plaintiff became sick, sore, disordered, and crippled for life, from which injuries he suffered great mental distress and physical pain, he was bound to expect evidence of any sickness or injury to plaintiff of memory or eyesight the origin or aggravation of which could be traced to the negligent act complained of." 3 In 8 Am. & Eng. Ency. Law, 658, it is said: "The authorities, it is believed, all agree in holding that mental injuries may constitute an element of damages; a person's mind, it has been said, being no less a part of his person than his body; and, indeed, the sufferings of the former are oftentimes more acute and lasting than those of the latter." So, in Watson on Damages for Personal Injuries, section 473, the author says. "The plaintiff may undoubtedly recover for any impairment of mental powers, faculties, or capacity produced by the injuries received. Under allegations that the plaintiff's injuries 'induced great suffering, permanent ill health, and physical weakness,' evidence is admissible of the impairment of mental powers produced thereby. So, also, impairment of memory may be shown under allegations that the plaintiff was greatly and permanently injured, externally and internally, and that by reason of such injuries he became sick, sore, and disordered, and crippled for life, from which injuries he suffered great mental distress, and was rendered unable to follow his usual occupation." In Ballou v. Farnum, 11 Allen, 73, Mr. Justice Colt. said: "There is a class of injuries, especially those which affect the brain and nervous system, to which this case seems to have belonged, where by common observation, the most satisfactory symptom and proof of the physical injury is to be found in the weakness and derangement of the intellectual faculties. Upon the whole, Nichols v. Railroad. then, upon principle we can see no error in the admission of the evidence, with the accompanying instructions. In the main it must always be left to the discretion of the jury to give such reasonable damages in these cases as in their opinion will afford compensation for the entire injury which the plaintiff proves he has sustained, subject to that power which remains in the court to set aside the verdict in those cases where the damages awarded are so excessive as to warrant the inference that some passion or prejudice or other improper considerations influenced them."' Likewise, in T. W. & W. Ry. Co. v. Baddeley, 54 Ill. 19, 5 Am. Rep. 71, where a witness was asked, by counsel for complainant, whether the injuries affected the mind of the plaintiff, and the witness was permitted to answer, over the objection of the defense, in effect, that the plaintiff's memory was impaired, Mr. Chief Justice Breese said: "The effort was to show by this witness the shock to plaintiff's system by the fall and consequent amputation of his arm, was so great as to deprive him in a great measure, of mental power, and this was a legitimate subject of inquiry." 8 Am. & Eng. Ency. Law, 660, 661; 3 Suth. Damages, secs. 944, 1244; Ford v. Warner Co., 1 Marv. 88, 37 Atl. 39; City of Chicago v. McLean, 133 Ill. 148, 24 N. E. 527, 8 L. R. A. 765; Wade v. Leroy, 20 How. (U. S.) 34, 15 L. Ed. 813; Wallace v. Railroad, 104 N. C. 442, 10 S. E. 552; Railway v. Silliphant, 70 Tex. 623, 8 S. W. 673; O. & M. R. R. Co. v. Hecht, 115 Ind. 443, 17 N. E. 297; Kennedy v. Rochester C. & B. R. Co., 7 N. Y. Supp. 221; Morgan v. Southern Pac. Co., 95 Cal. 501, 30 Pac. 601; Keyser v. C. & G. T. Ry. Co., 66 Mich. 390, 33 N. W. 867; C. & E. I. R. Co. v. Holland, 18 Ill. App. 418; Walker v. Erie Ry. Co., 63 Barb. 260. There are several other questions presented relative to the admission of testimony, but upon careful examination we perceive no reversible error in the rulings of the court respecting them. The appellant also complains that the damages 4 White v. Mining and Milling Co. awarded are excessive. In answer to this we can but repeat, what has been uniformly held by this court, that the amount of the verdict, under our constitution, is a matter wholly within the province of the trial court and jury, the same being a question of fact. Where, as here, there is any evidence to support the verdict, we have no power to pass upon it, or to set the verdict aside as being excessive. Braegger v. O. S. L. R. Co., 24 Utah, 391, 68 Pac. 140. In all such cases the trial court should exercise a sound discretion, and not permit a miscarriage of justice. The judgment is affirmed, with costs. JOHN T. WHITE, Respondent, v. THE CENTURY GOLD MINING & MILLING COMPANY, a Corporation, Appellant. . No. 1572. (78 Pac. 868.) 1. Contracts: Construction: Accrual of Cause of Action: Limitations. When defendant mining company contracted to repay to plaintiff certain sums loaned to it out of its first profits, the obligation became absolute after the lapse of a reasonable time and it not appearing on appeal at what date a reasonable time elapsed, either from the findings of the court or from the record, defendant's plea of limitations was of no avail.1 2. Same. Limitations did not begin to run against plaintiffs' cause of action until a reasonable time after the creation of the obligation had elapsed. Where defendant set up limitations the burden was on him to show the action barred. 'Busby v. Mining Co., 27 Utah 230; 45 Pac. 725. McIntyre v. Ajax Min. Co., 20 Utah 323, 60 Pac. 552. White v. Mining and Milling Co. (Decided December 10, 1904.) Appeal from the Third District Court, Salt Lake Action to recover money loaned. From a judgment in favor of the plaintiff, the defendant appealed. AFFIRMED. C. S. Price, Esq., and Messrs. Henderson, Pierce, Critchlow & Barrette for appellant. The court erred in rendering judgment in favor of this plaintiff and against the defendant for the reason that if the plaintiff has any right of recovery it must be only upon an accounting with this defendant and on behalf of all persons holding such claims, in respect to the profits, if any, made by this defendant, in order that the same may be distributed ratably and in order of their advancements. We contend that this plaintiff is not entitled to the payment of his claim in full, to the exclusion of those stockholders similarly situated, and who from plaintiff's own testimony are entitled to prorate in said fund, but that plaintiff's remedy is and was by a suit in equity against said defendant demanding an accounting on behalf of himself and all other stockholders similarly situated in order that the fund out of which the payments upon such obligations are to be made, might be prorated equitably among all the stockholders standing in like relation to this defendant. Shepherd v. Guern sey, 9 Paige 356; Deg v. Deg, 2 Williams 416; 1 Pomeroy, Equity Jurisprudence, sec. 407; 1 Story on Equity Jurisprudence (13 Ed.), sec. 64, p. 67. Applying the rule that "Equality is Equity," this action cannot be maintained, and should therefore be dismissed. |