281 Mass. 329 | Mass. | 1933
This is an action of tort to recover compensation for personal injuries received by the plaintiff when the bicycle which he was riding came in contact with a motor vehicle operated by the defendant. There was a verdict for the plaintiff. The case is here on the defendant’s exception to that part of the judge’s charge which is as follows: "When . . . [the plaintiff] becomes of age . . . he is entitled to his earnings; and, therefore, if there is any impairment of his earning capacity which extends beyond his reaching his majority, such impairment when he becomes a man, if you are satisfied of it as a matter of reasonable probability and not of speculation or conjecture, he is entitled to have you consider, if you come to the question of damages at all.”
The defendant properly does not contend that this part of the charge was incorrect as an abstract statement of law. See McGreevey v. Boston Elevated Railway, 232 Mass. 347, 350. But he contends that it was based on the assumption that there was evidence before the jury sufficient to support a finding of impairment of the plaintiff’s earning capacity after he should become of age, that this assumption was not justified and, consequently, that the charge was improper. See McDonough v. Vozzela, 247 Mass. 552, 560; Gerry v. Worcester Consolidated Street Railway, 248 Mass. 559, 565. In our opinion, however, the evidence, in its aspect most favorable to the plaintiff, though meager, was sufficient to support the finding.
A finding of permanent physical disability of the plaintiff as a result of the injury was warranted. He was fourteen years old when the accident occurred. The femur of his right leg was fractured. There was no evidence that it did not heal. But there was testimony, contradicted in some respects, that at the time of the trial — which took place over two years after the accident — as a result of the injury, the plaintiff’s leg was somewhat bowed, that it was three fourths of an inch shorter than the other, that there was some interference with the muscle at the place of the
A finding that the plaintiff’s physical disability impaired his earning capacity after he should become of age also was warranted. Determination of the extent of impairment of earning capacity by reason of injury, though involving contingencies and matters of opinion, is an ordinary function of triers of fact. Here, however, no direct evidence of the extent of the impairment, measured in money, was introduced. Frequently evidence of wages, salary or other income derived from personal services earned by a plaintiff before and after sustaining an injury is available for the purpose of comparison in proof of diminished earning power. See Hendler v. Coffey, 278 Mass. 339, 342. Obviously there can be no such comparison in the present case. Yet, even in the case of an adult, such a comparison is not essential to proof — and if shown is not necessarily conclusive — but all relevant facts are to be considered. Stynes v. Boston Elevated Railway, 206 Mass. 75, 77, and cases cited. Mahoney v. Boston Elevated Railway, 221 Mass. 116. Koch v. Lynch, 247 Mass. 459, 462. There was testimony to the nature and permanence of the plaintiff’s disability. Moreover, he was a witness at the trial and, from his appearance and conduct on the stand, the jury could form an opinion of his physical and mental characteristics. Keith v. New Haven & Northampton Co. 140 Mass. 175, 181. Gagnon’s Case, 228 Mass. 334, 339. Having this evidence before them the jury, with their knowledge of practical affairs, could measure the probable extent of the impairment of the plaintiff’s earning capacity after he should become of age. See Maynard v. Royal Worcester Corset Co. 200 Mass. 1, 8; Percival’s Case, 268 Mass. 50, 54-55; Byam v. Carlisle-Ayer Co. 272 Mass. 176, 179; Rosenkranz v. Lindell Railway, 108 Mo. 9, 17. In the absence of evidence of extraordinary ability, common experience as to
Exceptions overruled.
