124 F. 142 | 8th Cir. | 1903
after stating the case as above, delivered the opinion of the court.
The liability for future damages for the wrongful infliction of a personal injury is strictly limited to compensation for such suffering and other evil effects of the act as are reasonably certain to result from it. Possible, even probable, future damages are too remote and speculative to form the basis of legal injury. If they may or subsequently do result from the accident they are but a part of that damnum absque injuria which reaches too far into the realm of conjecture to form any part of the basis of an action at law. Filer v. N. Y. Central R. R. Co., 49 N. Y. 42, 45; Curtis v. R. & S. R. R. Co., 18 N. Y. 534, 542, 75 Am. Dec. 258; Fry v. Railway Co., 45 Iowa, 416, 417; White v. Milwaukee City Ry. Co., 61 Wis. 536, 541, 21 N. W. 524, 50 Am. Rep. 154; Block v. Milwaukee St. R. Co., 89. Wis. 371,
The chief complaint of the trial below is that in its rulings upon testimony and in its charge to the jury the Circuit Court violated this rule. The plaintiff’s attending physician testified that his right kidney was seriously affected; that in his opinion its unhealthy condition was caused by the accident; that he thought the disease in'it had reached a chronic state; that the tendency was for it to continue in that condition ; that if the plaintiff pursued the usual modes of living his condition would get worse; that the disease would tend to acute nephritis, and as that would proceed it would go on to Bright’s disease of the right kidney; and that Bright’s disease usually proves fatal. After this witness had retired from the stand Dr. Raymer was called by the plaintiff. He testified that he first examined the plaintiff the day before he testified. He then answered questions as an expert, and among other things said that the probable result of the injury the plaintiff had suffered was that he would tend to get worse; that there was some danger in a case of his kind that the high specific gravity of his urine which had been proved would give rise to Bright’s disease or pyelitis or cystitis; that he would hardly say that these results were more likely to occur than not to occur, but that they * ere things to fear. Thereupon his examination proceeded in this way:
“What is the nature of the disorders such as Bright’s' disease, and the other disorders, pyelitis and cystitis, that you have mentioned, as to their ultimate effect and termination? (Defendant objects because incompetent and immaterial; there is no evidence that plaintiff has Bright’s disease or will have or is likely.to have. Overruled, and defendant excepts.) A. Some of these diseases, such as pyelitis and inflammation of the kidney, such as Bright’s disease, endanger life. An inflammation of the kidney is not necessarily fatal, but it will endanger life, and may ultimately cause the death of the patient sooner than he would otherwise die. Q. Is there any known cure for either Bright’s disease or pyelitis? (Defendant objects as incompetent, irrelevant, and immaterial. Overruled, and defendant excepts.) A. That would be depending on the case and on the stage of the disease. A great many cases of acute Bright’s disease get well. Many cases of pyelitis get well, depending on what has been the cause, and whether the cause can be removed at once. But after they have reached a certain stage, and if the cause is such that it cannot be removed, then they are incurable. If it is due to injury, then it depends upon how long that cause has been in existence, and how removable the results of the injury are. The progress of these diseases may be either quick or slow. Q. Under what condition is development slow and under what conditions is it quick? (Defendant objects as being incompetent, immaterial, and vague, calling for a lecture on the subject. .Overruled, and defendant excepts.) A. Where the cause is comparatively mild and of long continuance, of course in those cases we would expect the results to come on slowly.”
In its instruction to the jury upon the subject of damages the court, while speaking of the plaintiff, said:
“Then he is entitled to compensation for the pain and suffering he had undergone in the past, and for any pain and suffering he may be called upon to undergo in the future — that is, in case you find that he will suffer pain and suffering in the future; he is entitled to receive damages for that.”
Nor is the exception to the charge of the court more tenable. If the instruction that the plaintiff was entitled to compensation “for any pain and suffering he may be called upon to undergo in the future” stood alone, without qualification by any other part of the court’s
The conductor of the train upon which the plaintiff .was injured was a witness for the defendant. In his direct examination he testified to two conversations which he had with the plaintiff, one at Moingona, where the accident happened, and one shortly after they left that place. He also testified that the stop of the train at the time of the accident was a gradual one, and that there was no sudden jar or noise of the cars coming together outside of the regular jars that are felt when a train is going around a curve. Upon cross-examination counsel for the plaintiff asked him this question: “Q. Shortly after you left Moingona, didn’t you use the following language in a conversation with Mr. De Clow, referring to this shock, T have had a talk with the engineer about the matter, and hope you won’t report it,’ or words to that effect, in the waycar on that train?” He answered, over the objection of the defendant that the testimony was immaterial, not cross-examination, and not having any bearing on the character of the shock, “I remember no such talk.” On rebuttal the plaintiff testified that after they left Moingona the conductor told him that he had talked with the engineer about the shock of the stop, and that he hoped that the plaintiff would not report it. To this testimony the defendant objected, just after it had been elicited, that it was not proper rebutting evidence, that it was hearsay, that it was not part of the res gestae, and that it was not Binding on the defendant. The court overruled these objections, and the defendant excepted. There was
Nor was the testimony of the plaintiff of the statement of the conductor that he had conversed with the engineer about the shock and that he hoped that the plaintiff would not report it immaterial or inadmissible. That statement was inconsistent with the conductor’s testimony that there was no unusual shock or jar when the train stopped, and the fact, if it was a fact, that he made this statement before the trial, had a direct tendency to impeach the credibility of his testimony upon the crucial issue in the case. Prior statements of witnesses inconsistent with their testimony upon material issues are always competent to impeach their credibility. Delaware, D. & W. R. Co. v. Converse, 139 U. S. 469, 477, 11 Sup. Ct. 569, 35 L. Ed. 213.
Counsel for the railway company assail the charge of the court upon the burden of proof. They concede, however, that the instructions it delivered were correct if the plaintiff was entitled to recover for breaches of contracts of carriage under the averments in his complaint. There were two causes of action and two counts in the complaint in this suit — one for injury to the person of the plaintiff, and the other for injuries to his horses. In stating the first cause of action he alleged that he was a passenger on the freight train, that it was carelessly and negligently stopped, and that by reason of this negligent stop he was injured. In stating his second cause of action he averred that he shipped over the defendant’s railroad several carloads of horses and colts; that while they were en route the train which carried them was so carelessly and recklessly operated that they were injured. Now, the attack of counsel for the railway company upon the portion of the charge in hand is founded entirely upon the assumption that the plaintiff waived his causes of action for breaches of the contracts because he alleged in each count of his complaint that the train was negligently stopped, or, in other words, that the contracts were negligently and recklessly broken. The record discloses no suggestion or contention on his part for this construction of the complaint at the trial in the court below, and no objection or exception to the charge in which this theory was either developed or mentioned. Each count of the complaint plainly charged a breach of contract — the first in the averment that the plaintiff was a passenger in one of the defendant’s trains, and that he was injured by its movements; the second in the allegations that the plaintiff shipped the stock over the defendant’s road, and that they were injured by the operation of the train. The only basis for the contention of counsel for the railway company that the causes of action upon the contracts were waived is that the plaintiff alleged
There was no substantial error in the trial of this case, and the judgment below must be affirmed.
It is so ordered.