McCarthy v. St. Louis Transit Co.

GOODE, J. — Action for damages for an injury to the plaintiff’s foot and ankle in alighting from a street car, caused by the premature starting of the car. Only one point is made here and that is •against the instruction on the measure of damages. We see nothing wrong with that instruction. Defendant’s counsel insist the jury were not required to find the plaintiff would suffer pain in the future as the condition of awarding damages for future pain but that, instead, the court told them he would have future suffering. The instruction conveys no such meaning. The court did not tell the jury the plaintiff would suffer pain, but left that to be found by them. The charge in this case is free from any infirmity due to leaving it to the jury to award damages for conjectural future pain which might possibly be suffered; as it allowed damages for only such pain as plaintiff will suffer. An instruction precisely like it was approved by the Supreme Court in Cobb v. Railroad, 149 Mo. 135, 50 S. W. 310. As to the allowance for damages for future earnings, the criticism is that the instruction did not require the jury [319] to find loss of fntnre earnings or that the plaintiff wonld sustain any such logs. This criticism is no more just than the one we have noticed; in fact, is precisely identical with it. There was testimony to show the plaintiff would he disabled in future. He testified that his foot still hurt him and that he could not use it like he could his other foot, and that its condition interfered with his getting employment. There is much profitless chaffering over instructions on the measure .of damages. In the present instance the assignment is plainly not well taken and the judgment is affirmed. All concur.