
    The Community Traction Co. v. Sear.
    
      Negligence — Measure of damages — Future pain and suffering— Charge to jury erroneous. .
    
    In personal injury action, charge that compensation to plaintiff should include compensation for pain and suffering endured since accident, and such as she might suffer in the future if injuries were of such character as to cause further pain and suffering, held erroneous.
    (Decided February 23, 1926.)
    Error: Court of Appeals for Lucas county..
    
      Messrs. Tracy, Chapman & Welles, for plaintiff in error.
    
      Messrs. Deeds & Cole, for defendant in error.
   Richards, J.

Mary Sear was a passenger on a car of the Community Traction Company of the type which receives and discharges passengers at central doors. When she was alighting from the car on Cherry street in the city of Toledo, on November 15, 1923, the door was closed too quickly by the conductor, and her arm was caught, and she suffered injuries. It is claimed on her behalf that the car was started, and she was dragged for a considerable distance before it was again stopped and she was released, while it is contended on behalf of the company that the door was almost immediately reopened, and that she was not dragged.

The company admits liability, but contends the damages suffered by the plaintiff were small in amount.

The trial resulted in a verdict and judgment in her favor in the sum of $3,000, and this proceeding in error is brought to secure a reversal of the judgment.

It is insisted that the trial court erred in charging on the subject of future damages. The language of the charge on this subject is as follows:

“The compensation which she may be permitted to receive will include compensation for her pain and suffering endured since the accident, and such pain and suffering as she may continue to suffer in the future, if the injuries are of such a character as to cause pain and suffering in the future. ’ ’

This language is condemned by the Supreme Court in the case of Pennsylvania Co. v. Files, 65 Ohio St., 403, 62 N. E., 1047, and has been condemned by this court in a great many cases, and it is certainly not a model charge. At the conclusion of the opinion in Pennsylvania Co. v. Files, supra, the Supreme Court notes the fact that this particular objection to the charge had not been called to the attention of the trial court otherwise than by excepting to what was said, and states that it is possible that, had this been done, that court would have made the correction, and, that if this were the only error, the court might not reverse the judgment. In the instant case the attention of the trial court was not called to the error other than by a general exception to the charge. Whether such an error in the charge requires a reversal depends upon the facts shown, as was well said by this court in the case of Toledo Railways & Light Co. v. Prus, 7 Ohio App., 412, 420. Almost identical language was used in charging on the subject of future damages in Cincinnati Traction Co. v. Riskey, 22 C. C., (N. S.), 301, 303; 33 O. D., 578, and, while the charge was condemned, it was not held reversible error. And that judgment was affirmed by the Supreme Court without report in 91 Ohio St., 413, 110 N. E., 1057.

In the case at bar it is insisted that the plaintiff was very seriously injured internally by the accident, while it is strenuously contended on behalf of the traction company that the internal condition existed long before she was injured in alighting from the car, and much medical evidence was introduced on this controverted fact.

Under the circumstances disclosed in the record in this case, while we might not reverse the judgment on this error alone, this court is convinced from the evidence that the amount of the verdict greatly exceeds the actual damages, -and. that substantial justice has. not been done the parties, unless there shall be a remittitur of $1,200 entered as of the date of the judgment.

We find no reversible error except as stated. If the defendant in error will remit from the judgment the amount stated, the judgment will be modified accordingly, and affirmed as modified; otherwise it will be reversed on the ground that, as to amount, it is not sustained by sufficient evidence.

Judgment accordingly.

Williams and Young, JJ., concur.  