Curtiss v. Rochester & Syracuse Rail Road

By the Court, T. R. Strong, J. The fair construction of the whole charge in relation to bodily pain and suffering of the plaintiff, is, that in ascertaining the amount of her damages, it would be proper for the jury to consider the bodily pain and suffering which had occurred, or was likely to occur, in consequence of the injury, but that they could not act upon conjecture as to the prospective condition or situation of the plaintiff; they could only regard in respect to the future what the evidence rendered reasonably certain would necessarily and inevibly result from the original injury. Thus understanding the charge, I think the instruction as to the propriety of taking into consideration future bodily pain and suffering, on the question of damages, was wholly unobjectionable. Such a consequence, which was necessarily and directly to flow from the injury, [292] was as much a part of it as the continuance of a physical disability which the injury occasioned. It was certainly proper for the jury, in estimating the damages to the plaintiff, to regard the effect of the injury in future upon her health, the use of her limbs, her ability to labor and attend to her affairs, and generally to pursue the course of life she otherwise might have done; and I do not perceive why it was not equally proper for them to consider its effects in producing bodily pain and suffering. But one action could be maintained by the plaintiff for her damages; it was-not necessary for her to • wait until all the consequences of the injury had become fully developed; but she was entitled to sue whenever she thought proper, and to recover damages for both past and- future pain of body, as well as for past and future deprivation of health, or of any- of her bodily powers. In respect to all the subjects of damage, it was requisite that they should be the legal, direct and necessary results of the injury, and that those which at the time of the trial were prospective, should not be conjectural. It was also requisite that they should be supported by such clear and certain evidence as ought to produce conviction in fair minds. All such results, in the aggregate, constituted the injury. - There is nothing speculative or contingent, in a legal view, in regard to such damages. They are wholly unlike the loss of uncertain profits by the breaking up of -a bargain, or the derangement of one’s business, resulting from an injury. ' It was not necessary for the plaintiff to allege the damages under consideration specially in her complaint. They were general damages, implied by law, as much as a continued disability consequent upon a broken limb. The amount was to be controlled by the evidence disclosing the circumstances of the case, as similar damages must be in all such cases. The degree of bodily pain and suffering, as of a bodily disability, of course varies in different cases. It cannot be said there was no evidence to support this item of the plaintiff’s claim. The injury took place in August, 1852 ;■ the action was tried in May, 1854; the condition of the plaintiff during the interval was fully proved; and medical testimony [293] was given in respect to the future consequences of the injury. It is true the age of the plaintiff was not proved, and therefore the evidence was less certain than it would otherwise have been, but I do not think that proof of her age was indispensable to the allowance of some damages of this character. [Cayuga General Term, June 4, 1855. The question of negligence was properly submitted to the jury. Although there was evidence which was uncontradicted, that the lever and target were rightly placed to bring the switch into a proper position, and that the switch had always before, and but a short time previous to the injury on the same day, worked well, yet no witness was able to testify that he noticed the rails, and that they were right, when the cars came along; and the fact stands out prominently upon the evidence, that the cars were thrown off because the rails were not right, or from some defect in securing them in their place. The degree of care which the law imposes on the defendants required them to see that the rails were in a right position, and not to trust exclusively to the lever, when the rails were, in open view while moving it; and also to see that the rails were firmly secured; and if they omitted to do so they were guilty of negligence. I am clearly of opinion that it would have been error to withdraw this question from the jury. For the same reason, the refusal to charge, that upon the uncontradicted proof the switch was rightly placed, and that that rebutted any presumption of negligence, was correct. In regard to the amount of damages awarded by the jury, there was evidence showing that the plaintiff had been most of the time thus far since the injury, incapacitated by it from labor; and there was also evidence tending to prove that the disability would be permanent, or at least long continued. I cannot say in view of this evidence, that the sum is too great, much less that the damages are so excessive as to indicate partiality, prejudice, passion, or any thing improper, in the jury. The motion for a new trial must be denied. Selden, Johnson and T. R. Strong, Justices.]