73 F. 128 | U.S. Circuit Court for the District of Washington | 1896
I find from the evidence in this case that on the night of November 3, 1894, the plaintiff, while attempt
Ix was the duty of the conductor, before giving tlie signal to the gripman, to look around, and to have seen that all passengers to take passage at that place were safely on board; and failure in ¡he performance of this duty cannot be excused by the fact that the conductor did not actually see the plaintiff. The negligence of the conductor in this regard is clearly established by all the evidence in the case, including liis own testimony. The plaintiff was diligent in attempting to get on the car while it was stationary. He may have been lacking in dexterity, but that is not such a fault as to preclude him from recovering damages.
The evidence shows that the plaintiff has expended for surgical treatment and medicines $120, and has suffered loss of wages by being incapacitated for a considerable time from pursuing his avocation as a laborer, besides suffering physical and mental pain. For these expenditures ; nd loss he is entitled to recover reasonable compensation. lie claims, in addition, prospective damages, as compensation for future loss by reason of diminished capacity to earn money. To entitle the plaintiff to recover prospective damages, it is necessary for him to prove with reasonable certainty Lhat his injury is permanent. In this case there is a lack of such proof. The plaintiff himself has testified that since his injury he has not been able, by reason of the weakness of his limb, to perform a day’s work, and he believes that he will not become sufficiently strong to perform hard labor. He lias been discouraged by reason of his injury, and it is but natural for him to entertain such belief, although it appears from other evidence in the case to be erroneous. The most im
“Q. There was nothing unusual about this case, for that kind of a fracture? A. No; except, perhaps, there was a small piece of hone which had splintered off, about the size of my finger, ready to burst through the muscles and tendons, just underneath the skin, — ready to go through. That is the only unusual part of the case. Q. That is not unusual, either, — a splintered fracture? A. No; excepting that, if this fracture was moved at all, it would have been compound, which would have made it far more serious than it was. Q. If it had been moved. But, as it was not, it was a simple fracture? A. Yes; it was a simple fracture. Q. And the result of the treatment of yourself and Dr. Eames was that you obtained a compílete reunion of tbc limb? A. Yes, sir. Q. Of the hone, I mean. Aud the operation and its results are among the best that you have obtained in those eases, are they not? A. Considering his age, and having a great deal of laceration of the soft parts, we consider the result very good. Q. The cartilaginous growth which you speak of is only a part of the substance that nature throws in to cause the juncture of the hone, and to heal and restore the parts? A. Yes, sir. Q. The additional growth will finally be fully absorbed, so that the bony matter will be like it was originally, practically, in all respects? A. Well, there will always remain a small lump, there. Q. A very little enlargement, so that it will he perceptible, but only so? A. Yes, sir. Q. There is no pain there? A. No; not that I could tell. Q. And the smaller size of that leg is due to the fact that it is not used, and has not been used, as much as the other? A. X suppose so. Q. The exercise of the limb will bring back its normal size, will it not? A. Well, probably so.”
It is my opinion that the sum of $1,000 will be a reasonable compensation for the injury as proved. Let there be findings and judgment accordingly.