Bailey v. Westcott — 16 N.Y. St. Rep. 671

Majority

p. 671

Harriet L. Bailey, Resp’t, v. Robert E. Westcott, App’lt.

(New York Court of Common Pleas, General Term,

Filed May 18, 1888.)

Headnote

Negligence—Damages fob injubies received thbough—When future CONSEQUENCES MAT BE CONSIDERED IN ESTIMATING.

This action was brought to recover damages from injuries alleged to have been caused by the negligence of one of defendant’s servants, Held, that the probable occurrence of future consequences must be proven with at least a reasonable degree of certainty to be considered in estimating the damages, and that such as were contingent, speculative or merely possible, were not entitled to consideration.

p. 672

Appeal from á judgment entered on a verdict of a jury in favor of plaintiff.

E. Russell, for resp’t; E. L. Hamilton, for app’lt.

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 this 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 and Syracuse R. R. Co., 18 N. Y., 534 ; Strohm v. N. Y. L. E. and W. R'y Co., 96 id., 305; Tozer v. N. Y. C. and H. R. R. Co., 105 id., 617; 6 N. Y. State Rep., 447.

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

Judgment should be reversed and a new trial ordered, with costs to the appellant to abide the event.