
    James M. Morrison, Respondent, v. The Long Island Railroad Company, Appellant.
    
      Negligence—delay in seeking medical assistance in the case of a cinder striking an eye presents a question of fact—capitalizing the loss of earning power is an improper measure of damages.
    
    In an action brought to recover damages resulting from injuries caused by the alleged negligence of the defendant, it appeared that the plaintiff was struck in the eye by a cinder which he alleged was negligently permitted to escape from an engine belonging to the defendant, and that when he consulted a phy- . sician the night of the next day he was then advised to see a specialist, which he did on the afternoon of the following day.
    
      There was no testimony tending to show the effect of this delay upon the injury, and the defendant requested the court to charge that, if the plaintiff's delay in seeking medical assistance materially contributed to the loss of his eye, the plaintiff was guilty of negligence, in response to which request the court charged the jury that the plaintiff had done everything which the law required him to do.
    Upon the question of damages the court instructed the jury that they must determine how much the plaintiff could earn before he lost his eye and what he could earn since the loss; that this would constitute his loss of earning power, and that, when the jury had ascertained that, they would have a right to fix a sum, the annual income of which would equal that earning power.
    
      Held, that the burden rested upon the plaintiff to show that his neglect had not contributed to the injury, and that the conclusion to be drawn from his testimony, describing his conduct after he received the injury, was one of fact, and that the charge of the court in this respect was erroneous;
    That the defendant was not called upon to show that the delay in consulting a physician necessarily aggravated the injury;
    That that portion of the charge Which related to damages was also erroneous, in that it permitted the jury to capitalize the plaintiff’s loss of earning power.
    ' Appeal by the defendant, The Long Island Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 10th day of April, 1895, upon the verdict of a jury rendered after a trial at the Kings County Circuit, and also from an order entered in said clerk’s office on the 11th day- of April, 1895, denying the defendant’s motion for a -new trial made upon the minutes.
    
      William C. Beecher, for the appellant.
    
      Charles J. Patterson, for., the respondent.
   Brown, P. J.:

■ The' plaintiff, while standing upon Atlantic avenue in the city of Brooklyn, was struck in the eye with a cinder which he-alleged was negligently permitted to escape from an engine upon the defendant’s road. The result of the injury was the loss of the eye.'

The accident occurred on January 9, 1894, between three and four o’clock in the afternoon. Immediately .after the accident plaintiff went to a drug store, but nothing appears to have been there -done for him. He then went to his home, and during the evening bathed his eye with hot water and Pond’s Extract. He did not •consult a physician until the following night. He was then advised to see a specialist, and on the afternoon of the next day,. January ■eleventh, he consulted Dr. Matthewson. There was no testimony introduced by either party to show that this delay aggravated the injury, or that the sight of his eye could have been saved had the plaintiff consulted a competent physician earlier than he saw Dr. Matthewson. The plaintiff testified that from the time the accident occurred he was practically unable to see with the injured eye, and that within a half hour thereafter it began to discharge freely

It was the defendant’s contention that the plaintiff’s delay in consulting a physician had contributed to the loss of the eye, and the court was requested to charge that the plaintiff was hound to satisfy the jury by a fair preponderance of proof that the severe injury complained of was not in any manner caused by his own neglect, and that if the plaintiff’s delay in seeking medical assistance materially contributed to the loss of his eye then he was negligent and could not recover. In response to this request the court stated correctly to the jury the general rule of law relating to the plaintiff’s duty in that regard, and then added the following : “ I charge you as matter of fact and as matter of law that the plaintiff did use in this case all the law required — did everything the law required him to do, and used those means which suggested themselves to him in the proper way.”

To this instruction the defendant took an exception.

Upon the question of damages the court instructed the jury as follows: “If you find for the plaintiff oh these issues then you will give to him a fair sum of money to compensate him for the loss of earning power; whatever he might have earned more than he can earn now by reason of having lost his eye, his fair compensation in that regard, and you are to determine as best you can how much he could earn before he lost his eye, and how much he can earn since he lost his eye. That would be his loss of earning power, and when you ascertain that you have a right to fix a sum the annual income which that earning power would produce to him.” And to this instruction the defendant excepted.

We are of the opinion that both exceptions were well taken.

The burden rested upon the plaintiff to show that his neglect had not contributed to the injury, and the conclusion to be drawn from his testimony as to his conduct after receiving the injury was one of fact.

The defendant was not called upon to show that the delay in consulting a physician necessarily aggravated the injury. It had a right to rest. its case in that respect upon the plaintiff’s evidence. The court was not authorized to determine as a question of law that that delay was not injurious to the plaintiff. The inference to be drawn from the testimony was wholly one of fact, and it was‘for the jury to determine.

The charge in respect 'to the rule to be applied in determining the plaintiff’s damages was plainly erroneous. There is no doubt as to the meaning of the learned judge. He very plainly -intended to permit the jury to capitalize the plaintiff’s loss of earning power. That rule for measuring damages cannot be sustained. (Gregory v. N. Y., L. E & W. R. R. Co., 55. Hun, 303.)

The judgment and' order must be reversed and new trial granted, with costs to abide the event. ~ *

All concurred.

judgment and order reversed and new trial granted, costs to abide event.  