p. 256question of future pain and future disability, with power to award damages therefor.
Sedgwick, Ch. J., dissented, holding that, while there might be a doubt as to the right of the jury to award damages for future pain, it was competent for them to decide unaided by expert testimony, whether or not her disability to fill a situation ensued from her broken leg, and would or would not be reasonably certain to continue.
Before Sedgwick, Ch. J., Freedmak and Ingraham, JJ.Appeal from a judgment entered in favor of the plaintiff on the verdict of a jury, and from an order denying defendant’s motion for a new trial.
Hamilton Odell for appellant, argued :
There was no proof in this case to authorize the submission to the jury of the question of the plaintiff’s future pain and loss. The only testimony relating in any way to her injuries was given by herself. She testified that her leg was broken, her scalp was torn and her back was injured; that she was three months and upwards in the hospital; that she had suffered pain all the time since the accident; that she had not been able to walk without the aid of crutches; that her limb was not in the condition in which it used to be, that a change of weather affected the broken bone; that the arm was not much use ; that there was a cold sensation all the time in her arm and hand, and that she had been u having pains and sufferings very much lately, especially in the leg and back.” Upon1 such testimony the jury were instructed to determine whether the plaintiff’s injuries were likely to be permanent, and to what extent she would continue to suffer pain and be disabled from earning her own bread. This was plain error. Filer v. N. Y. Central Co., 49 N. Y. 46 ; Mosher v. Russell, 44 Hun 15 ; Curtis v. R. &. S. Company, 18 N. Y. 534 . The authorities all unite in requiring sub
p. 257stantial proof to be made that future pain and disability will result to the plaintiff directly from the original injury, where the claim for damages rests at all upon that ground. Matterson v. N. Y Central Co., 35 N. Y. 492 ; Caldwell v. Murphy, 1 Duer 240 ; Aaron v. Second Avenue Co., 2 Daly 129 ; Drew v. Sixth Avenue Co., 26 N. Y. 49 ; Spicer v. C. & N. W. Co., 29 Wise. 585; Fry v. Railroad Co., 3 Reporter 644. The only proper proof by which the fact can be established is the testimony of experts. And they are permitted to testify only to such apprehended consequences “ as, in the ordinary course of nature, are reasonably certain to ensue. Consequences which are contingent, speculative, or merely possible, are not proper to be considered in ascertaining the damages.” Strohm v. New York, &c., Co., 96 N. Y. 306 ; Tozer v. N. Y. Central, 105 Ib. 617, 659.Artemas H. Holmes, for resnondent.
Upon the present appeal but a single exception has been urged, and that relates to the submission to the jury of the question of damages for future pain and future disability.
The only testimony in the case relating in any way to plaintiff’s injuries, was given.by the plaintiff herself, and the testimony thus given contained a description of the injuries sustained, of past suffering and her present condition. Her injuries did not involve a loss of limb, or other loss of so marked a character that from a bare exhibition of it an inference of permanency could be drawn, and no proof was given showing or tending to show that there was any reasonable certainty of future pain or future disability. All this was left to mere conjecture. It was therefore error in the learned judge who presided at the trial to submit the question of future pain and future disability to the jury with power
p. 258to award damages therefor. Mosher
v. Russell, 44
Hun 12 .
The judgment and order should be reversed and a new trial ordered with costs to the appellant to abide the event.
Ingraham, J., concurred.
The accident happened in August, 1885. The trial was in October, 1887. At that time the plaintiff testified that by the accident her leg had been broken, her arm fractured, and her scalp torn from her forehead for several inches. She had suffered pain all the time since. She had not been able to walk without crutches to the time of her testifying. The condition of her broken leg interfered with her ability to walk. She could not fill any situation.
The court charged the jury: “ It is for you to consider whether from all that she has said, and from the statements of her present condition, and what you have seen of it, there is a reasonable certainty that these pains will continue and impose upon her a disability of earning her own bread.”
It was understood that the learned judge, by the word pains referred to the injuries received as well as to the pain suffered. For, the exception to the charge was, “to the submission to the jury of the question, whether there is a reasonable certainty upon the evidence that these pains and injuries of the plaintiff will continue and disable her from earning her own livelihood.”
The ground of the exception was’ that the jury were not competent to find whether the consequences would last permanently, or for how long they would last, and that they could pass upon this only by the help of a physician expert. If the charge referred only to the continuousness of the pain, there might be a doubt, which does not exist in this case, as I think. The leg
p. 259of the plaintiff was broken, she walked with crutches, after two years, in which she-had received professional •care. The jury had some means of observation. I think the common knowledge or common sense of the jury would make them competent to say, in the absence of testimony from an expert, whether it was not reasonably certain that the condition of the broken bone would continue to be as it had been, and have in the future the consequences it had had in the past, and that if her disability to fill a situation had ensued from her broken leg, this disability would not continue.
The exception that has been referred to was the only one argued upon the appeal.
I think the judgment should be affirmed with costs.