
    JOHN T. MARVIN, Respondent, v. THE MANHATTAN RAILWAY CO., Appellant.
    
      Damages—Personal injuries, evidence as to future consequences of, perma-, nent and, temporary, rule as to.—Remote and indirect consequences of injury, judge's charge as to.
    
    Before Sedgwick, Oh. J., Truax and O’Gorman, JJ.
    
      Decided June 9, 1886.
    Appeal by defendant from judgment entered on verdict for plaintiff, awarding him damages for a fractured thigh bone.
    The action was for damages for personal injury caused by defendant’s negligence, as claimed.
    Appellant’s counsel maintained the validity of an exception to the admission of the following question : “Are the conditions that you have described, as having found, such as the shortening and the callus, likely to be permanent or otherwise V This was objected to on the ground that it called for testimony as to what was likely to be, and not what was reasonably certain to be.
    The Court at General Term (after stating the facts as above), said :—“ The latter opinion seems to be that wdiat is relevant, in any degree, to the certainty of future consequences is competent, although it does not, of itself, tend to prove such certainty. It is not necessary to make any decision as to this. The answer contained no incompetent testimony. It was 1 The shortening will be permanent. The shrinking of the circumference of the thigh is not apt to be permanent, neither is the callus apt to be permanent ; the latter will be apt to remain only for probably several years.’ The jury might have found the meaning of this answer to be that the shortening will certainly never be changed; and that the callus and then present size of the thigh will probably not be permanent, but will certainly last for some indefinite time. The plaintiff was entitled to recover not only for permanent impairments of the body, but for those that would certainly last for some time, although not always, and receive damages for the temporary effects. If the answer were true, the plaintiff was entitled to recover nominal damages for the temporary effects, even if they could not give a greater sum, because the duration of the temporary effects was not shown, except indefinitely. The counsel for defendant requested the court to charge that ‘ the jury can give no damages for such consequences of the injury as are merely likely, but must confine themselves to considering those consequences which are reasonably certain.’ The court did not charge in those words, and probably the exception which the argument supposes to have been taken to the refusal to charge this, did not with enough definiteness, call the attention of the court to a few words which if altered, would have made the charge the equivalent of the request, if it would have been necessary tó the rights of the defendant to charge those words. The court said ‘ if upon the whole case you are satisfied that the injury will involve consequences in the future you may consider those consequences, provided, upon the evidence you can say that they are the direct and natural result of defendant’s negligence.’ The jury was here confined to things certain to occur in the future. The proviso does not permit damages for consequences not certain of occurrence, but in substance tells the jury not to regard as consequences, though the jury might think they will occur, those things that will not be the direct and natural effect of defendant’s negligence. The proposition relates to the theory of legal causation, which refers to a proximate cause only. This is proper to be considered, as well to future events as to past. The judge next said, ‘ for remote consequences, which are' merely likely to result, but which are not the direct and natural consequence of defendant’s negligence, you can award no compensation.’ There was no error here. The jury were told that there could be no recovery for remote result^, not direct and natural effects of the negligence, and that were only likely to happen ; for two reasons,—they were not certain to happen, and besides were not legal consequences. The implication that counsel argues there was, that there might be a recovery for remote effects naturally and directly caused, was prevented by the earlier part of the charge that has been considered. The damages were clearly excessive. They were $7,500. The jury could not have used a calm, unbiassed method in assessing them. For that reason the judgment should be reversed, unless the plaintiff should prefer and elect to reduce the verdict to $3,500, and in such case the judgment as affirmed, without costs. Otherwise judgment is reversed, and new trial ordered, with costs to abide events.
    
      Davies & Sapallo, attorneys, and Hugh L. Cole, of counsel for appellant.
    
      W. H. McDougall, for respondent.
   Opinion

Per Curiam.  