Thomas v. Wabash, St. Louis & Pacific Railway Co.

Ellison, J. The chief, if not the only, complaint [488] urged here against the action of the trial court, is in giving the fourth instruction for plaintiff as to the measure of damages. It being argued that the instruction in connection with the evidence for plaintiff authorized the jury to find such damages as are only recoverable by the husband alone; such as loss of plaintiff Mary’s service, and the expense attending her sickness, etc. If the interpretation given by defendant’s counsel to the testimony, and the instruction is correct, his conclusion would likewise _be true. The evidence, which was given without objection .from defendant, was not intended to prove the loss of plaintiff’s service, and undoubtedly was not so looked upon by the court or jury. The question was as to the extent of her injury, and in proving this, it was shown, without objection, that before her injury she was stout, able-bodied, and capacitated to do, and did do, a variety of labor, common to women in her situation. That after her injury, which was internal, she found herself wholly unable to do the labor she had before performed with ease. We do not care to set out the evidence in full, but we have given it consideration as it is set out by defendant, and have no doubt of its meaning. The instruction, in view of the evidence in the cause, was not such as to work any substantial injustice to defendant. It was proper that the jury should consider the age of plaintiff. Her age might have much to- do with the extent of the injury. Bodily injury to a person of advanced age might be alarmingly serious, while the same injury to another might be overcome by the strength and vigor of youth. As to the word'“situation,” in the instruction, we see where under certain states of the evidence, this might involve a consideration of the question whether the situation in life of one injured should be considered in making up the damages in a case of this character. But here we need not consider such points, and do not. It is clear that the use of the word situation, under the evidence in this cause, worked no injury to defendant. The authorities cited for defendant sustain its assertion that damages in a suit by the wife, the husband being nomi [489] pally joined, cannot be given her when they are only such as belong to the husband alone, but such is not the case before ns. The judgment was for the right party, and it is, with the concurrence of Hall, J., affirmed. Philips, P. J. I non-concur in the foregoing opinion, for the reason that I apprehend- the employment of the words tC situation of the plaintiff,” was calculated to mislead the jury, and induce them in the estimation of damages, to take into consideration matters which pertain alone to the husband, as head of the family.