
    The Cleveland and Pittsburg Railroad Company v. James A. Sutherland.
    S. brought an action against a railroad company, to recover damages for personal injuries occurring to him whilst a passenger on defendant’s cars through the negligence of the conductor, “ whereby he was rendered permanently lame, and disabled from performing and transacting his necessary affairs and business,” etc. Upon the trial the plaintiff introduced evidence tending to prove that, prior to the injury complained of, he was employed as a turner ip the pottery business, that he was a good workman in that business, able to earn full wages, and was an industrious man ; and that by the injury complained of he was crippled, and disabled from properly working at his said business, and earning full wages as before. The plaintiff having rested, the defendant offered to prove that, long before said accident occurred, and thence hitherto, the plaintiff was and had continued to be an habitual drunkard; and that his habits of drunkenness had incapacitated him for labor. Upon objection by the plaintiff, the evidence so offered was excluded by the court. Held— That on the question as to the amount of compensatory damages which the plaintiff ought to recover, the evidence offered had a legitimate bearing, and that in excluding it the court erred.
    Error to tbe court of common pleas of Portage county,Reserved in the district court.
    Tbe case, so far as regards tbe question decided, is sufficiently stated in tbe opinion of tbe court.
    Otis, Qoffinberry, ds Adams for plaintiff in error:
    The first ground of error in tbe petition in error alleged, is, “ That said court erred in excluding from the jury tbe testimony of B. D. Misner.” Tbe offer was to show by that witness, with a view to mitigate damages, that tbe plaintiff bad before tbe accident become incapacitated for labor, which, .condition had resulted from intemperate habits on his part.
    There can now be no doubt as to the rule of damages in such cases; and that, while compensation is given for bodily-pain and suffering, the chief inquiry as to damages is, the effect of the injury in future upon the health — the ability to labor and attend to his affairs in the course of his business. “ The party injured may give evidence of the nature of his business and the-value of his services in conducting it, as a ground of estimating damages ” (as was done in this case essentially). 23 Wend. 425.
    In the case before this court, plaintiff had shown that since the accident he had not been capable of doing much work in his calling, which was a very material fact upon the question of damages. But if it was true that he was incapacitated for work before the accident, that fact becomes quite as material as the other, and is a perfect rebuttal of the other — in fact the only rebuttal of the other.
    It may be said that, although we might be allowed to prove that Sutherland was, before the accident, incapacitated for labor, we should not be allowed to prove that he became incapacitated from the effects of intemperance. It perhaps makes no difference what was or is the disease that has broken a man’s constitution, but it is very difficult to show that a man is' disabled without showing what is the matter with him. Showing that a man was disabled by hernia, for instance, is not different in principle from showing that he was disabled by the diseases that follow and accompany extreme intemperance; and in any view of that question, the fact that evidence was offered which should be rejected is no reason for excluding other evidence that was admissible and pertinent.
    
      Hart c& Heed for defendant in error:
    In this case, looking at the pleadings,'we had a right to regard the company as admitting that this injury sued for had disabled Sutherland from working at his trade.
    But we further submit, that the testimony of Misner was incompetent, no matter what the condition of the pleadings might have been. ' Drunkenness cannot be set up by a defendant for the purpose of mitigating damages, in an action brought to recover for a physical injury. If Sutherland had such habits, and they were known, then the company should have used even greater care than otherwise; and the attempt to prove it on the trial ought to aggravate the injury, rather than lessen it.
    “ In the proof of damages, both parties must be .confined to the principal transaction complained of, and to its attendant cvrcumstcmces and natural results; for these alone are put in issue.” 2 Greenleaf's Evidence, sec. 268.
    “The chm'acter of the parties is immaterial, except in actions for slander, seduction, or the like, where it is necessarily involved in the nature of the action.” 2 Greenleaf, sec. 269.
    Again, such testimony should be excluded on the ground pf public policy. If courts were to allow that kind of evidence, then they would grant a judicial license to carelessness and negligence, whenever an inebriate might get' on board of a railroad train.
    Take another view of it. Let it be conceded that a sober, industrious Christian man is of more value to his family and himself than an intemperate, lazy, or wicked man. These things will always get out sufficiently in the trial of a cause, without any special proof. And in an action to recover damage for a physical injury, these moral qualities cannot be made the basis for aggravating or mitigating damages. They are independent of the injury. They do not grow out of it, nor are they the cause of it. They are too far-fetched, too intangible and uncertain; and if observed by courts, there would be established, in a little while, grades and differences in the sacrcdncss and value of life and limb, measured by rank and social position, fortune or misfortune.
   Scott, J.

The defendant in error was plaintiff in the court below, where he brought his action to recover damages for personal injuries caused by his falling whilst in the act of getting off the cars of one of the railroad company’s trains, upon which he was being carried as a passenger, for hire. He averred in his petition that his fall and consequent injury was occasioned by the negligence of the conductor of the train, who refused and neglected properly to stop the train at the station which was the point of destination of plaintiff below, and who requested the plaintiff to leave the train-whilst in motion; and that in endeavoring to comply with such request of the conductor, he fell, and sustained severe bodily injury, whereby he was rendered permanently lame, and was disabled from performing and transacting his necessary affairs and business; for which, and for expenses incurred, in medical treatment, he demanded a judgment.

The defendant below, by answer, denied the negligence charged, and averred that the injury complained of was caused by the plaintiff’s own negligence, etc.

The case was twice tried to a jury, and upon the second trial the plaintiff obtained a verdict for $2558 damages.

Defendant below filed a motion for a new trial, on the grounds of error in the court in excluding evidence offered by defendant, and in refusing to charge the jury as requested, and in the charge as given; and because the verdict was not sustained by sufficient evidence; because the damages were excessive; and because the petition does not state facts sufficient to constitute a cause of action.

This motion was overruled, and judgment entered on the verdict.

The assignments of error in the district court present the same questions which were raised by the motion for a new trial; a proper bill of exception having been taken upon the trial, which set out all the evidence in the case.

From the bill of exceptions taken upon the trial, it appears that the plaintiff upon the trial in the court below, offered evidence tending to show, among other things, that he was about fifty-six years of age, that his trade or occupation was that of a turner in the pottery business, at wffiich he had been in the habit of working for wages; that he had no other occupation, or means of supporting himself and family, excepting from his wages as a workman in potteries; that he w'as an industrious man, always willing to work when he could; that he was a good workman, with capacity to earn full wages, up to the time of the injury complained of; and that by reason of said injury he was rendered permanently lame and crippled, and so incapacitated for working regularly at Ms said business, and earning wages as before.

The plaintiff having rested, the defendant called as a witness, one B. D. Misner, who testified that he was acquainted with Sutherland the plaintiff, and had lived close by him, in the same .village, for several years ; and thereupon the defendant offered to prove to the jury by' this witness that long before said accident occurred to the plaintiff, on the 8th day of April, 1864, and ever since, the plaintiff was and has been a habitual drunkard; that he would get drunk whenever he could obtain the means to procure whiskey; that his habits of drunkenness had incapacitated him for labor; and the defendants stated their object in offering said testimony to be, amongst other things, to show to what extent pecuniarily the plaintiff had been injured by said accident; and also to show that his services were worth less than the plaintiff claimed them to be; and to mitigate the damages claimed by the plaintiff in consequence of being disabled from labor, if the jury should be of opinion that he was entitled to recover any damages on thataccount. Where upon the plaintiff objected to the admission of said testimony; which objection was sustained by the court, and said testimony was ruled out, to which opinion and ruling of the court the defendant excepted,” etc.

The first assignment of error draws in question this ruling of the court. And we are constrained to say, that we are aware of no rule of law which would require or justify the exclusion of the evidence offered by the plaintiff in error. A very material part of the plaintiff’s cause of action, as stated in his pleadings, and attempted to be sustained by his evidence, was, that through the defendant’s wrongful act, he had been permanently incapacitated from pursuing his usual trade or business, and from earning by his daily labor the wages upon which he and his family were dependent for a support. Now if the jury found for the plaintiff upon the issues joined, the amount of damages proper to be allowed as a compensation for this deprivation of the power of procuring profitable employment, and earning wages, would, to a great extent, depend upon the character and degree of the capacity alleged to have been impaired or destroyed, or, in other words, upon the amount of wages which the plaintiff might reasonably be expected to have been in a condition to earn, but for the injury complained of. This would necessarily depend, in a degree at least, upon the nature of his employment or business, and upon the extent to which he possessed the skill, knowledge, and capacity, in every respect, for performing the duties and labor which his particular calling or trade would require. The previous state of his health and vigor of his constitution would materially affect the question in most cases; and, in short, everything legitimately bearing upon his ability to secure employment and obtain remunerative wages might properly be considered by the jury. The plaintiff had accordingly offered evidence tending to show his good character as a workman in his trade, and his ability to earn full wages, before he was injured.

To meet this evidence, the defendant proposed to prove that the plaintiff, long prior to the occurrence of the accident stated in the petition, and thenceforward till the time of the trial, had been and still was an habitual drunkard, and that, by this habit he had been incapacitated for labor. We think it was clearly competent for the defendant to show that the capacity to labor, for loss of which the plaintiff was seeking compensation, did not arise solely from the alleged injury, but existed prior thei’eto, and had arisen from other causes.

In so far as the alleged disability to labor had ai’isen before the accident occurred, the defendant could not justly be held chargeable for it; and if causes existed prior to the accident, having a natural tendency to destroy or materially and permanently impair the ability of the plaintiff to earn wages, we think the defendant had a right to bring the existence of such causes to the knowledge of the jury. Eor the purposes for which this evidence was offered, we think it should have been allowed to be introduced; and that on account of its exclusion the judgment of the court of common pleas must be reversed.

This conclusion renders it unnecessary to discuss in detail the questions arising upon the remaining assignments of error. Upon full consideration, we find no other error in the record, and reverse the judgment solely for the reason we have stated.

Brinkerhoff, C. J., and White, Welch, and Day, JIT., concurred.  