Chicago Great Western Railway Co. v. Bailey

[208] The opinion of the court was delivered by Wells, J.: The defendant in error, the plaintiff in the court below, was riding with and as the guest of her sister, who was driving an old and steady horse attached to a buggy. Returning to their home in Kansas City, Mo., their route was over Central avenue, the main traveled thoroughfare between the two cities. As they approached Wood street they found the plaintiff in error’s locomotive standing partially across the street upon which they were traveling, with the front toward the center of the street. They stopped and waited some time for permission of the flagman to pass on, and while so waiting the horse became scared and tipped the buggy over and injured the defendant in error, for which an action is brought, a judgment recovered for $1800, and the case brought here for review. The first allegation of error is in" giving instruction No. 8, which reads : . “If you find for the plaintiff you will allow her such an amount as in your judgment will compensate her, for her physical pain and mental anguish, which she has suffered or may suffer from and in consequence of her injury, without regard to the character of the parties, or the ability of the defendant to pay, not exceeding the sum of $1995.” The complaint is founded upon the use of the words “or may suffer,” it being contended that thereby the jury were permitted to speculate as to what might occur in the future. We think this instruction was erroneous and necessitates a new trial. The other allegations of error do not require consideration. The judgment of the court below is reversed and a new trial directed. McElroy, J., concurring.