
    DAMAGES FOR INJURIES TO AN INFANT.
    Superior Court of Cincinnati, General Term.
    The Cincinnati Traction Co. v. Lowell Wooley, an Infant Aged Seven Years. 
    
    Decided, March 21, 1906.
    
      Negligence — Resulting in Injury to an Infant-^Special Expenses— Earning Capacity — Failure to Show Emancipation- — -Charge of Court — Evidence—Street Railways — Measure of Damages.
    
    1. It is error to admit over exception an answer to a question which involves opinion regarding a matter not susceptible of expert testimony, where the jury are in possession of all facts necessary to form an intelligent opinion and the question is one which they must themselves determine.
    2. In an action by an infant, brought through his next friend, for damages sustained through the negligence of the defendant, it is error to charge the jury with reference to expenses sustained by reason of the accident, where the petition does not allege that any expenses were incurred and there is no evidence on that point.
    3. It is also error to instruct the jury that an allowance may be made for time lost by the minor by reason of the injury and for diminished earning capacity, where no evidence has been offered as to time lost and it does not appear that the minor has been emancipated.
    Hoffheimer, J.; Hosea, J., and Littleford, J., concur.
    
      
       Affirmed by the Supreme Court without report, February 18, 1908-(77 Ohio State).
    
   This action below was for damages suffered by defendant in error, an infant aged seven years. The action was brought by the--father, as next friend, and the-verdict was for defendant in error, in the sum of $1Q,200. Ih due course, judgment was entered on the verdict, and these proceedings in error are had to reverse the proceedings below. Several grounds are assigned. It is claimed that the verdict is against the weight of the evidence; that the court erred in the admission of testimony; and that there was error in the charge of the court relating to the measure of damages.

We have carefully read the entire record in this case, and although it was argued with much force that the verdict was against the weight of the evidence, we do not feel that we can interfere with the verdict on that account. While we may differ with the jury, and while we may even doubt the correctness of its finding, we must be guided by the rule established in Ohio. In McGatrick v. Wason, 4 O. S., 566, 575, Judge Thurman said:

“Should we disturb this finding? If it is clearly wrong, we must do so. If we only doubt its correctness, we must let it alone.”

In French v. Millard, 2 O. S., 63, the court said:

“We are not satisfied that the verdict of the jury was right, but this is not enough. A mere difference of opinion between the court and the jury does not warrant the former in setting aside the verdict of the latter. That would be, in effect, to abolish the institution of juries and substitute the court to try all questions of fact. ’ ’

We can not say that the verdict was clearly wrong and, therefore, can not say that the verdict was against -the weight of the evidence.

It is claimed that the court erred in permitting the following questions to be asked and answered:

Q. “If the fender of this car had been dropped before the car reached the boy where he was lying on the ground, you may state whether or not, this boy of the size you then observed, would have passed under the fender?” A. “He could not.”

Plaintiff, in error duly objected to the admission of this testimony, and noted his exception, and we think that the court erred in overruling the objection of the plaintiff in error, and in permitting witness to answer the question. The matter was not one that was susceptible of any expert testimony, and it was one of the questions that the jury had to determine for itself under the evidence. The jury had all of the primary facts upon which to form an intelligent opinion, and arrive at a correct conclusion without the use of extrinsic opinions. The fact to be determined was not obscure, and the jury was as capable of determining the question and forming an opinion as an expert. Railroad Co. v. Schultz, 43 Ohio St., 270, 283; Insurance Co. v. Eshelman, 30 Ohio St., 647, 656; Circleville v. Sohn, 20 C. C., 368, 373.

We likewise think that inasmuch as the action was brought by the next friend on behalf of the infant, the court erred in that part of its general charge relating to the measure of damages. The court said in its charge:

“If the jury under these instructions, considering all the testimony as I have here directed, should find for the plaintiff, it would be your duty to assess damages. And, in that event, your verdict should be in such an amount as will compensate for the injuries which the plaintiff has actually sustained, directly resulting from the negligence and want of care on the part of the defendant. This would include the pain and suffering that he has endured; time lost by reason of his injury; the loss that may accrue to him by reason of his diminished capacity to earn money, in the event that you find that his injuries are such as to diminish his capacity to earn money. You would be justified also in taking into consideration in your verdict, all the expense which he has been put to, in consequence of the injury; and if you find for the plaintiff, the jury would be justified in awarding him such damages as may fairly compensate him for the injury.”

The petition did not set forth any expense by way of special damages, nor was there any evidence on this point. The charge that the jui’y would be justified in considering 'expense, was erroneous, because it permitted the jury to speculate upon the question of damages. Andrews v. Railroad, 19 O. C. C., 699; Railroad v. Zepperlin, 10 C. C., 36.

■That part of the charge quoted, which permitted damages for “time lost by reason of the injury” was also misleading, and also permitted the jury to indulge in speculation. There was’ no evidence of time lost by the minor (Voorheis on Measure of Damages, Personal Injuries, Par. 36) and even if there was, the earnings of the minor, as no emancipation was shown, properly belonged to the parent.

Kittredge & Wilby, for plaintiff in error.

Byron M. ClenDening, for defendant in error.

That part of the charge that permitted the jury to award damages “for the loss that may accrue to him by reason of his diminished capacity to earn money in the future” was likewise prejudicial to plaintiff in error. If any cause of action accrued for diminished earning capacity during minority, it was in the parent and not in the infant. Rosencrantz v. Lindell Railway Co., 108 Mo., 9.

Although there was no testimony as to expense or time lost, it could not be said the jury under the charge did not indulge in speculation on these various items, concerning which the court had so fully charged, and it could not be said that it did not consider the diminished earning capacity of the infant; or that it did not include in its calculations the ten years, more or less, that remained up to the time of this child’s majority. If anything was allowed by way of damages for these various elements included in the charge, it would be impossible to discover it, or separate it from the verdict. The cpiestion of damages, it can be readily seen, was an exceedingly important element in the ease, and as the instructions in regard thereto were misleading and erroneous, and upon a point material to it (Lowe v. Lehman, 15 Ohio St., 179), we are of opinion that the error was prejudicial to plaintiff in error, and we conclude that the judgment must be reversed, verdict set aside and a new trial granted, and it is so ordered.

Littleford, J.

I concur in this opinion and think the judgment below ought to be reversed for the additional reason that the verdict is against the weight of the evidence.  