110 Mo. App. 391 | Mo. Ct. App. | 1905
— Action for damages resulting from personal injuries sustained by plaintiff in consequence of the negligence of defendant in maintaining in a defective and out-of-repair condition a board sidewalk on Agnes avenue between Eighteenth and Nineteenth streets in defendant city. Plaintiff, while walking thereon in May, 1900, tripped over a loose board and fell, from which she suffered várious bodily injuries. The trial resulted in a judgment for her in the sum of one thousand dollars.
Defendant complains of the submission to the jury of the permanent character of the injuries received as an element of damages and asserts the evidence thereof is insufficient to support the instruction which presented that issue.
Prom plaintiff’s evidence it appears her right collar bone was.Broken and in healing had failed to unite
The other expert, Dr. Jones, found the same conditions as those testified to by Dr. Fulton. He further testified as follows: Q. “Now, I will ask yon if her •injury, in your opinion, is permanent?” A. “Well, I think the results of the injury,- in all likelihood, are permanent. ” It is said the word “ likelihood ’ ’ used by this witness falls short of including within the scope of its meaning that degree of certainty which has been held elemental to the right to recover on account of the permanency of injuries sustained. It Is not required of the plaintiff to prove, nor of the jury to believe in, the absolute certainty of enduring condition ■or result. It is éssential to show the existence of such facts as a reasonable certainty; in other words, the very highest degree of probability must appear, but to compel the plaintiff to go beyond this, would be unreasonable— and doubtless would work injustice in many cases wherein the fact of permanency, though real, cannot be ascertained with positive certitude.
“In all likelihood” should be treated as the equivalent of reasonable certainty. Both expressions describe the same degree of probability — the highest. We may add that, in the interpretation of language employed by witnesses, the main object is not to draw fine ■distinctions based upon accurate definitions of words, but to ascertain the real idea intended to be expressed.
The nature of the injuries and plaintiff’s very ■obvious condition at the time of trial, as disclosed by her evidence, were sufficient in themselves, without the ■opinion of experts, to permit the jury to pass upon the question of permanency. The broken ends of the bone, had failed to join, but overlapped; the shoulder drooped forward; the ligaments were shrunken; the muscles •atrophied; the arm r'educed in size and bereft of strength, all of this in a person fifty years old and of ■delicate constitution. No need to resort to conjecture •or speculation in entertaining the belief that she always will have a bad shoulder and arm.
Plaintiff’s fifth instruction is as follows: “If you ■find for the plaintiff you will assess her damages at such sum as you believe will be- a just and reasonable ■compensation for any pain of body and mental anguish suffered by plaintiff, if any, and for any pain of body and mental angush that she may suffer by reason thereof in the future, if any, and for any permanent, injuries plaintiff may have suffered by reason thereof, if any, in all not exceeding fifteen thousand dollars.”
The extent of plaintiff’s' injuries, the pain and suffering endured, and the future consequences to be expected, were all facts in issue under the pleadings and evidence. Defendant introduced evidence contradicting that of plaintiff upon these facts. Defendant assails the instruction quoted on the ground that both, with respect to future pain and permanent injury, it fails to confine the consideration of the jury within the limits of reasonable certainty, but permits them to revel in the field of mere probability, and even of conjecture — to award damages for purely contingent or imaginary future results. So far as this criticism is applied to the issue of permanent injury, it is without
But that portion of the instruction relating to future pain is subject to serious objection. As to such damages the jury was directed to include those arising “from any pain of body and mental anguish that she may suffer.” Considering the conflict in-the evidence, the jury, under the instructions given, was free to reject the claim of permanent injury and yet could have found the injuries to be such that future pain would follow. Such pain not being dependent upon a permanent condition of injury is a separate and independent element of damage, and was so.treated in the instruction; therefore, the language employed in submitting the issue of permanent injury can not be used to limit the license given the jury to indulge in speculation in awarding damages for future pain. Damages that may be suffered include those that will result, and far more besides — the legion, traceable perhaps to the original injury, that may spring into being as the result of unanticipated future events. The uncertainty of such happenings furnishes the reason for the rule which prohibits their consideration, as an element of damage.
In Wilbur v. Railroad, not yet reported, we held : “Consequences which are contingent, speculative or merely possible are not to be considered. To justify a recovery for apprehended future consequences, there
We find no other error, hut for that appearing in. plaintiff’s fifth instruction the judgment is reversed, and the cause remanded.