
    Sarah R. Meeteer, Resp’t, v. The Manhattan Railway Co., App’lt.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed March 31, 1892.)
    
    1. Negligence—Damages.
    It is error, in an action for personal injuries, to allow the jury to award damages for the future effects of the injuries, where the evidence simply shows that they were likely to be permanent, and not that there was a reasonable certainty that they would be so.
    2. Same—Evidence—Chaege.
    It is error in such a case to refuse to charge that the jury, if they saw fit, might reject the whole or any part of plaintiff’s testimony as to how the accident happened, or the nature and extent of the injuries, because she was interested in the result, especially where the court has already charged that they were not bound by the expert testimony.
    8. Same.
    It is error for the court to refuse to charge that the jury were not to consider the fact of the refusal of the court to dismiss the complaint as any indication of the opinion of the court as to the facts of the case.
    Appeal from judgment entered upon verdict and from order denying motion for new trial.
    
      J. H. Adams, for app’lt; F. M Barnard, for resp’t.
   Per Curiam.

The action was brought to recover for injuries sustained by the plaintiff while a passenger on defendant’s elevated railroad through the alleged negligence of the defendant.

The question which has been principally urged upon this appeal relates to the amount of damages which were awarded, and which it is claimed were based upon an erroneous theory as to the evidence which was necessary to justify a finding that the injuries caused by the accident were of a permanent character. In the reception of evidence, and in the efforts made to exclude what was regarded by the defendants as incompetent evidence, and in the charge of the court, the effect was to some extent to permit the jury to understand that they were at liberty to award damages for injuries which were likely to be permanent, instead of , confining their verdict to damages for such injuries as would with reasonable certainty be permanent

It is not necessary for us to go over the entire testimony to point out the different instances in which such rulings were made. But as an illustration, Dr. Dana, an expert called for the plaintiff, was asked by the court the following question: “Gan you say with reasonable certainty whether this injury is likely to be permanent?” And the witness answered: “ I can.” He was then asked: “ Is it or is it not likely to be permanent ? ” To which he answered: “ It is likely to be permanent in the sense that it will improve somewhat, but she is not likely to ever get entirely over it.”

The same witness was also asked: “ Q. Gan you say with reasonable certainty whether this disease tends to shorten life or not ? A. I can say that

“ Q. Does it? A. In many cases it does.”

The counsel for defendant excepted to the answer and moved to strike it out as incompetent and improper. ' The court denied the motion and defendant excepted.

The court in the charge said: “ If you consider she has been permanently injured you may award compensation for that.” And when defendant excepted to this portion of the charge the court said : “ When I say if you consider, I mean if you consider from the evidence ?” In view of what had preceded, to which attention has been called, it is evident that sufficient weight was not given to the true rule that should be applied in regard to giving damages for permanent personal injuries in cases of this kind. Furthermore, it appears from the record that counsel for the defendant requested the court to charge that the jury, if they saw fit, might reject the whole or any part of the plaintiff’s testimony as to how the accident happened, or as to the nature and extent of her injuries, because she was pecuniarily interested in the result

This the court declined, except as charged. And it appears from a reading of the charge that the court did not instruct the jury at all as to their right to reject the plaintiff’s testimony because of interest; but simply left the questions at issue upon the evidence, leaving the jury to infer that they were bound to consider the evidence of the plaintiff as of equal weight with that of any other witness. And this view is emphasized by the fact that in reference to the expert testimony he expressly charged the jury that they were not bound by such evidence.

The counsel for the defendant also requested the court to charge that the jury were not to consider the fact of the refusal of the court to dismiss the complaint as any indication of the opinion, of the court as to the facts of the case. This the court declined and ■defendant excepted.

We think that the court should have charged as requested, for the mere fact that the court held that it was bound to submit the question of fact to the jury was no indication that, if the court had been at liberty to determine the questions, it would have determined them in favor of the plaintiff. It was only an indication that in the opinion of the court there was some evidence tending to support the claim of the plaintiff.

The judgment should be reversed and new trial ordered, with costs to appellant to abide event

Van Brunt, P. J., O’Brien and Ingraham, JJ., concur.  