Atlanta Street Railroad v. Jacobs
15 S.E. 825
Ga.
1891
Check Treatment
Bleckley, Chief Justice.

1. The contention of the learned counsel for the railroad company is, that it was error to submit the impairment of the power of a married woman to labor as a distinct element of damage, and allow her to recover for it. He insists that this damage was not sued for, and that in another part of the charge of the court the entire subject of pain was dealt with ; hence the jury were allowed to give for impairment of her power to labor what they pleased, even though it were greatly more than her husband would be entitled to recover were he the plaintiff in the action. It is true that it is not expressly alleged in the declaration that the capacity of Mrs. Jacobs, the plaintiff' in the court below, to labor, was impaired, but a definite injury to her person is alleged and described whichincapacitated her to walk without the aid of crutches. An injury which disables one from walking without crutches necessarily impairs to some extent ability to labor. It follows that such impairment is embraced by necessary implication in what the declaration alleges. The injury sued for being one which incapacitated the plaintiff' to walk without crutches, and consequently one which impaired her ability to labor, compensation for this impairment of her physical perfection was a part of the redress for which the action was brought and to which the plaintiff', when she verified by evidence the case set out in her declaration, was entitled.' According to the declaration, the plaintiff “was thrown violently to the ground, striking her knees on the stone pavement of the street; the fall caused great pain and suffering and injury; she will always suffer from said injury, and her capacity for enjoyment has been greatly lessened; her knees were very much bruised, and the bones much injured; she has been compelled ever since to remain under the treatment of surgeons; she has been confined to her bed six *652weeks, and has been unable to walk at all since the occurrence, except on crutches; the injury to her knee is permanent, and she will be compelled to use crutches all her life; she has been put to great expense and suffering on account of said injuries, and has been entirely unable to care for herself.” She claims damages in the sum of $15,000.

2. Grant that the entire subject of pain was dealt with in a previous part of the charge of the court, the jury could not have understood from the instructions added on the subject of impaired power to labor that they were to give double damages for pain and suffering. On the contrary, they must have understood that the general instructions related to pain other than that discussed in the special instruction. It seems to us that the loss or material impairment of any power or faculty is matter for compensation irrespective of any fruits, pecuniary or otherwise, which the exercise of the power or faculty might produce; and irrespective, also, of any conscious pain or suffering which the loss or impairment might occasion. Every person is entitled to retain and enjoy each and every power of body and mind with which he or she has been endowed, and no one, without being answerable in damages, can wrongfully deprive another by a physical injury of any such power or faculty, or materially impair the same. That such deprivation or impairment can be classed with pain and suffering was ruled by this court in Powell v. Railroad Co., 77 Ga. 200; and inasmuch as enforced idleness or diminished efficiency in offices of labor is calculated to give rise to mental distress, it is not error to describe the thing by its effects and call it pain and suffering. But it need not be so called necessarily, and consequently it was not misleading for the court to treat of it separately as a subject-matter for compensation in damages, although the plaintiff was a married woman. *653Touching this element of her case, the measure of damages would be neither more nor less than that which the law recognizes for pain and suffering. There is no standard but the enlightened conscience of impartial jurors.

The other points made by the record were not argued by counsel; and if they embrace any error, we have been unable to discover it. Judgment affirmed.