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Bailey v. Westcott

14 Daly (N.Y.) 506 Court N.Y.C.P. Decision date 1888-05-18 English

Delivered by Per Curiam.— [Present, J. F. Daly, Allen, and Bookstaver, JJ.]

Contents

Majority

p. 506
Harriet L. Bailey, Respondent, against Robert E. Westcott, as President of Westcott’s Express Company, Appellant.
(Decided May 18th, 1888.)

Headnote

On the trial of an action to recover damages for personal injuries, the court allowed plaintiff’s counsel to aslc the physician who attended plaintiff the question, “ What, in your opinion, is likely to be the permanent effect upon B.’s [plaintiff’s] general health, of the injuries she has received? ” and also charged the jury that “ if the injury is permanent in its character, and likely to affect her in after life, that will enhance the damages.” Held, that the allowance of the question and the charge to the jury were erroneous, as authorizing damages for future pain and suffering which was rendered probable merely.
Appeal from a judgment of this court entered upon the verdict of a jury.
p. 507
The facts are stated in the opinion.
Austen Cr. Fox, for appellant.
Edward Russell, for respondent.

—This is an action to recover damages caused by the alleged negligence of one of defendant’s servants.

During the progress of the trial, the physician who attended the plaintiff, after receiving the injuries, was asked the following question: “ What, in your opinion, is likely to be the permanent effect upon Mrs. Bailey’s general health, of the injuries she has received, with respect to which you have attended her, to which you have already testified?” This was objected to as conjectural and uncertain; but the court overruled the objection and permitted the evidence to be given, and in charging the jury, said, “ that if the injury is permanent in its character and likely to affect her in after life, that will enhance the damages ; ” to. which the defendant excepted.

We think tins was error. The objection to the evidence and the charge is that it authorizes an allowance of damages for future pain and suffering, which is rendered probable merely. Damages are to be proved; and none can be allowed, except such as are shown by the proof to be, at least to a reasonable degree, certain. Consequences which are contingent, speculative, or merely possible, are not proper to be considered in ascertaining damages, in cases like the present (Curtis v. Rochester &c. R. Co., 18 N. Y. 534 ; Strohm v. New York &c. R. Co., 96 N. Y. 305 ; Loze v. New York Cent. &c. R. Co., 105 N. Y. 617 ).

As the judgment must be reversed for these errors, it is unnecessary to examine the other questions raised on this appeal.

Judgment reversed and new trial ordered, with costs to appellant to abide event.

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