
    Cook v. New York Cent. & H. R. R. Co.
    
      (Supreme Court, General Term, Fifth Department.
    
    June, 1888.)
    Damages—Fob Personae Injuries—Future Suffering—Expert Testimony.
    In an action for personal injuries, a medical expert, having testified to the condition of the injured part, may be asked to state what the probabilities are as to the plaintiff’s future, as indicated by the symptoms to which he had testified.
    Appeal from circuit court, Genesee county.
    There was a verdict and j udgment for plaintiff below. Defendant presented a motion for a new trial, which was overruled, and defendant appeals.
    Argued before Barker, P. J., and Haight, Bradley, and Dwight, JJ.
    
      Harris & Harris, for appellant. Safford D. North, for respondent.
   Barker, P. J.

The plaintiff, a common laborer, in the service of the defendant, engaged in digging a trench some eight feet deep, was injured by the caving in of the walls of the excavation. The most serious injury was to one of his hips and the connecting parts. The trial took place about a year after the accident. At that time the plaintiff had not fully recovered from the injury, and he was lame, and unable to do active manual labor, and was then suffering from pain in his chest, and experienced some difficulty in breathing. One of the physicians testified that the hip was permanently injured; that there was a separation of the ilium and sacrum; that the former was not firm in position, but was movable; that he found a depression over the hip bone, caused by the wasting of the muscles, which cáme from a continued injury to the nerve. He further testified: “I think that condition will be permanent, and the effect will be to render him less muscular, less strong, —feebler: it will not necessarily give him pain; it is likely to do so.” Then this question was asked the same witness: “Will you state what this increased diminution of muscles indicates as to this man’s future?” The defendant interposed a general objection, which was not ruled upon by the court, nor was the question answered. The court addressed the witness, saying: “You can state what the probabilities are. ” The defendant objected, and the witness answered the question, viz.: “The probabilities are the atrophy will continue in consequence of this diseased condition. We think the question and the answer were both competent, within the rules of evidence established in this state. In estimating the pecuniary loss in such cases, all the consequences of the injury, future as well as past, are to be taken into consideration. Curtis v. Railroad Co., 18 N. Y. 542. In applying this rule, it must be observed, however, that, in cases of tort for personal injury, it is necessary for the injured party to show that the future damages for which he claims to recover are. reasonably certain to ensue as a natural result of the wrongful act imputed to the defendant. Consequences which are contingent, speculative, or merely possible, are not to be considered in ascertaining the damages. It is competent for a medical expert to give his opinion as to the ordinary or probable course of a disease or injury to a person, based upon his examination and knowledge of the case. . This the witness was permitted to do, and nothing more by the form and substance of the question, and in his answer he kept strictly within the limits of the inquiry. The witness could not speak with absolute certainty as to the future effects of the injuries, nor as to the period” of their duration. He could, at most, only express his best judgment. By giving to the language in which the question was propounded, and the words in which the witness answered, their ordinary meaning, it is manifest that the witness intended simply to express his opinion, based upon the symptoms of the case with which he was familiar. It was but a cautious expression of an opinion by the witness as to what maybe reasonably expected to follow in the future as the natural effect from the present appearance and condition of the person injured. This form of inquiry, made of medical witnesses with a view of securing an expression of their opinion as to the probable future results of an injury, has been sanctioned by the highest authority. In Filer v. Railroad Co., 49 N. Y. 42, a. medical expert was asked a question in this form: “State, from your experience and medical knowledge, the probability of a recurrence of an inflammation of this muscle? What will be the probable effect upon the health of Mrs. Filer, in your opinion ?” It was held that both questions were proper, and that the probable result of a personal injury, in the opinion of a competent witness, was proper. In Lincoln v. Railroad Co., 23 Wend. 425, it was held that the probable future condition of the injured party was a proper matter for inquiry of medical witnesses. The rule as laid down in these cases was not overruled or limited in Strohm v. Railroad Co., 96 N. Y. 305, but cited in support of the general propositions there stated. In that case it was held that, by the form and character of the inquiry permitted, a witness was allowed to state the conditions of the injured party which might develop in the future from the injuries he had received, and thus open the door for the jury to assess speculative damages. It was not intended, in that case, to change or alter the well-settled rules of evidence on this subject, as stated in the previous decisions. On the same subject, Turner v. City of Newburgh, 16 N. E. Rep. 344. The opinion of witnesses in this class of cases,' expressed within the limits of the rule, is for the consideration of the jury for the purpose of aiding them in assessing the damages. But, to entitle a plaintiff to recover present damages for probable future consequences, there must be such a degree of probability of their occurring as amounts to a reasonable certainty that they will result from the original injury. Strohm v. Railroad Co., supra. This is the legal rule by which the jury are to be guided, and it is for them to say whether the evidence, including the medical testimony, brings the case up to that standard of certainty. One is a rule of evidence, to be observed in the examination of witnesses, and the other is a rule of law by which the right of recovery for future damages is to be determined. We also agree with the learned judge who presided at the trial, and who also dismissed the defendant’s motion for anew trial, that a case was made for the consideration of the jury. Judgment and order affirmed.

All concur.  