
    Washington McNaughton, Respondent, v. The Metropolitan Street Railway Co., Appellant.
    (Supreme Court, Appellate Term,
    February, 1898.)
    1. negligence — Charge.
    In an action to recover damages for personal injuries caused by the alleged negligence of the defendant the court was requested to charge that the inflexible rule in such cases was that the jury must be satis- ■ fled that the injury was caused solely by the defendant’s negligence and also that the plaintiff did not, in any way, by his .own negligence
    ■ or want of care, contribute in any degree to produce the same, and answered “ So charged, except the word solely.” Held, that as the request was read in the hearing of the. jury, the limitation was prejudicial to the defendant, but that it was cured by a subsequent charge that if the jury believed, either that the injury was caused by the plaintiff’s own carelessness, or that - it was the result of a pure accident, they must render a verdict for the defendant.
    2. Same — Measure of damages.
    Proof’ that prior to an accident, the person injured had been earning 835 a week; that he could not, at present, do his ordinary work without an assistant and that he could not, without assistance, lift his hand to his head, make a prima facie case for the recovery of damages for loss of occupation.
    3. Same — Physical pain.
    An instruction by the court that, if the plaintiff was’ entitled to recover, the jury might allow him compensation “ for the pain and suffering he underwent and the loss he sustained, and no more,” is correct.
    Appeal from a judgment of the General Term of the City Court, affirming a judgment of the Trial Term in favor of the plaintiff, for personal injuries resulting from the negligence of the defendant.
    Henry A. Robinson (J. T. Little, Jr., of counsel), for appellant.
    Levy & Stuart (M. P. O’Connor, of counsel), for respondent.
   Gildersleeve, J.

The only exceptions urged upon this appeal by the appellant are (1) to a refusal of the trial judge to charge that there was no evidence from which the jury might find damages for loss of occupation or business, and (2) to' the amendment by the trial judge in striking out the word “ solely ” from the following request to charge, viz.: In an action of this kind it is an inflexible rule of law that to entitle the plaintiff to recover, the jury, from all the evidence in this case, must be satisfied of two . things, first, that the injury sustained by the plaintiff was caused solely by the defendant’s negligence, and second, that the plaintiff ¿id not, in any way, by his own negligence or want of care, contribute in any degree to produce the same.” This request was read before the jury, and the court said: “ So charged, except the word solely.” Previous to this the court had charged that the “ plaintiff, before he can recover, must satisfy you by a preponderance of evidence, first, that the defendant was negligent — in other words, that the gripman of the defendant, in' the management of that car, on that occasion, was negligent,— and, second, that he' himself was free from negligence, and did not contribute to the accident through any fault of his own; because if you find that he did, then he received the injuries through his own fault, and cannot recover for the same from the defendant.” The appellant claims, however, that the refusal of the court to use the word “ solely ” must have left the jury to infer that they were entitled to find for the plaintiff, although the defendant was not solely to blame; and that this was tantamount to charging the jury that they might find for the plaintiff, even if he did contribute to some extent to the injury, since there was no question as to the negligence of any third party.

'■ There seems to be some force in this contention. It will be remembered that this request was read in the hearing of the jury, and after the court had made its charge on the subject in question, as last above quoted. So it is reasonable to suppose that when the court said “ so charged, except the word solely,” the attention of the jury was brought particularly to this part of the request to . charge, and that the preceding instruction of the court on this subject may have become somewhat' modified in the minds of the jury. However, immediately afterwards, the court, on the defendant’s request, charged that “ if the jury believe that the injury to the plaintiff was caused by his own carelessness, or that it was the result of a pure accident, then, in either event, the jury must render a verdict for the defendant.” This question, therefore; presents itself, viz.: Does not this instruction, taken with the previous instruction in the body of the charge, bn the subject in question, cure whatever prejudice may be said to have been caused by the court’s striking out the word “ solely ” from the request? There was no question of the negligence of any third party presented either by the pleadings or by the evidence, and the court particularly stated, after the refusal aforesaid, that if the plaintiff’s carelessness or negligence contributed to the accident, or if the injury was the result of a pure accident, the verdict must be for the defendant. What, therefore, could-the jury have understood, except that, to entitle the plaintiff *to recover, the defendant’s negligence must have been the proximate and only cause of the injury?

We are of the opinion, that, although it would have been more correct had the trial judge charged in the exact language requested, it must- be said that the alleged error under consideration does not warrant a reversal of the judgment. In the instructions given to the jury upon the question of negligence, both before and after the taking of the exception under consideration, the learned trial judge laid down the law clearly, fully and accurately.

It is a w'ell-settled principle that where the court has charged fully and completely, in its own way, every element of the request, it is not bound to repeat, parrot-like, the words of counsel, or reiterate, in other forms, the clear and pointed instructions already given. Laidlaw v. Sage, 2 App. Div. 378.

The other alleged error, assigned as a ground-for reversal, is the refusal of the court to charge that there was no evidence from which the jury may find damages for loss of occupation or business. To this refusal the defendant duly excepted. If, therefore, we find no evidence of a pecuniary loss to the plaintiff, caused by his inability to perform Iris usual work, the exception was well taken. .

The plaintiff testified that it was three weeks before he was able to go upon his wagon, and that he' could not do the other work, belonging to his calling, by reason of his injuries; that he could not carry trunks, which it was his business to do, and which he was able to do, without the assistancé of another man, before his injuries; that he made efforts to do business, but could not do it, because He was not able to; that he had not been able, and, at the time of the trial, could not raise his arm to his head without the assistance of the other hand; that at the time of the accident he was earning $35 a week.

It must be said that, although this testimony does not indicate any exact sum the plaintiff sustained by way of special damage arising from the loss of occupation, there is some evidence from which the jury might infer substantial damage of that character.

In Orsor v. Metropolitan Cross Town R. R. Co., 78 Hun, 169, cited by appellant in support of his contention, it was held error to permit the jury to consider damage arising from loss of earnings, for the reason that it was evident from the testimony that plaintiff did not know what his earnings were. In the case at bar we have the plaintiff’s earnings before the injury, and evidence of the extent of his disability thereafter. We think there was sufficient evidence to sustain a substantial award for pecuniary loss.

We, therefore, see that it was not error for the court to refuse to charge that there was no evidence from which the jury might find damages for loss' of occupation or business. In charging the jury on the question of .damage, the court said: ' “ Should you find for the plaintiff, under the rules of law I. have laid down, you have a right to allow him a fair compensation for the injuries occasioned to him, through the ' negligence of the defendant’s servants, for the pain and suffering he underwent, and the loss he sustained, and no'more.” This instruction was correct. It fully protected the defendant’s rights, and was all upon the subject that the defendant was entitled to have. • .

There are no other exceptions in the case of sufficient importance to call for discussion.. ¡

For the reasons above given the judgment appealed from must be affirmed, with costs. !

Beekmax,P. J., and Giegerioh, J., concur. .

Judgment affirmed, with costs.  