The court further charged: “The measure of damages, when you settle these facts under the evidence, is this: First, if you find his capacity to labor, make money, has been permanently diminished, you would determine how much. If, for instance, a man was earning $2,000 a year and the effect of the injury would be to leave him able only to earn $1,000, you would of course see his earning capacity would be diminished one half. That is merely an illustration ; so you take it and find out if his earning capacity has been diminished, and to what fractional extent; then find out from the evidence, taking these life-tables if you see fit to use them (you are not bound by these tables; you can use them to determine how long this man could expect to live); then from those two facts, the amount of his diminution, its extent and the length of time that he would expect to live, you would reach such an amount as would make good to him the loss year by year, and at the end of the time be itself consumed, that is such an amount as paid down now would represent that fractional loss for that period of time and still at the end of the expiration of that time be itself consumed.” Assigned as error for want of sufficient evidence to authorize it. •Error was assigned on the first clause of the following charge: “Now, as to the claim for pain and suffering, the measure of damage is simply the conscience of the jury, what the law calls the enlightened conscience of an impartial jury; there can necessarily be no mathematical caculation as to that; no rule of arithmetic helps a jury there. You take the evidence and the nature of the man’s injuries, and as reasonable, fair-minded men, and determine from that what he must have suffered, if at all; the extent of the suffering, how long he suffered, the amount of it, the intensity of it; all that you ought to consider as conscientious men seeking to .do justice between the plaintiff and defendant, and give him such an amount as in your conscience you think is right in this particular case.”B. E. Lyon, for plaintiff in error.Dessau & Bartlett, contra.
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