delivered the opinion of the court.
Appellant was plaintiff in the trial court. She brought suit to recover damages arising out of an automobile collision, in which the respective drivers were Mrs. Clary and Mrs. Breyer. Plaintiff was awarded judgment for $750' and appeals, assigning certain errors in the instructions and in the exclusion of evidence, all of which were relevant to the amount of the verdict. There is no cross-аppeal.
The husband of appellee was joined as defedant, but the trial court sustained defendant’s motion to еxclude the testimony as to his liability. This action is assigned as error.
The liability of the husband here is controlled by Dement v. Summer,
The next assignment involves the exclusion of testimony regarding the earning capacity of the plaintiff. At the time of the accident, she was employed at a local theater but the loss of wages there earned were not sought as a basis for recovery. She had formerly served as a trained nurse but had not engaged in such еmployment during the preceding four years. In the meantime, she had married and assumed the duties of housewife, supplementing thеse duties by the local employment above stated. Evidence was introduced over objection showing the usual basеs for pay of nurses in that locality. It was further offered to show that although she had not been engaged in nursing for the past four years, it was her intention to go into training at a distant city to take courses in nursing in order to equip herself adequately. To this testimony, objection was sustained. We find no error here. The prospective earnings as a trained nurse after such training involve too many speculative factors to afford a satisfactory and acceptable gauge. A thwarted intent to qualify for services is not available as a basis for computing either the extent to which such intent might have matured into effiсiency nor the extent to which such acquired efficiency would be impaired by present disabilities. Moreover, plaintiff рrocured an instruction which allowed the jury to include as damages “any impairment of the plaintiff’s earning capaсity.”
*621 The granting of the following instruction to the defendant is next assigned as error: “The Court charges the jury for the defendant, Mrs. Alice Breyer, that if you believe from the testimony in this case that the plaintiff, Mrs. Clary, and the defendant, Mrs. Alice Breyer, both were guilty of negligence, as defined in these instructions, at the time of the accident, proximately causing the same or proximately contributing to the cause of said accident, and the jury should return any verdict for the plaintiff, then under their oaths, the jury must lessen any damages, if any, awarded the plaintiff to the amonnt of negligence attributable to Mrs. Clary.”
This instruction was inartificially drawn and would bеtter have followed the unambiguous language of the statute, Code 1930, Section 511. We do not hold that its allowance was rеversible error, but in view of the necessity for remanding .the case, we find it appropriate to make this comment.
The lаst error assigned is the granting of the following-instruction for the defendant: “The Court charges the jury for the defendant, Mrs. Alice Breyer, that if they believe from the testimony in this case that Dr. Royals treated the plaintiff as her physician for the injuries alleged to hаve been sustained by her in this case, and that the said Dr. Royals was available as a witness in her behalf, and she failed to introduсe him as such witness, then the presumption is that his testimony would have been adverse to the plaintiff.”
While it is the opinion of the writеr that this instruction not only violates Code 1930, Section 586, and is in a form which exceeds even the bounds to which similar instructions were еxtended in Killings v. Metropolitan Life Ins. Co.,
Since the above errors are relevant to the issue of damages and the cause must be remanded, there is no occasion to consider the assignment relating to the alleged inadequacy of the verdict.
Reversed and remanded for trial upon the issue of damages only.