72 S.W. 584 | Tex. | 1903
This suit was brought by defendants in error, T.A. Clark and wife, against the plaintiff in error for an injury to the ankle of the wife, alleged to have been caused by the negligence of the railway company in not providing a safe means of alighting from a train upon which she was a passenger. There was a verdict and judgment in the plaintiff's favor and the judgment was affirmed by the Court of Civil Appeals.
We granted the writ of error because we were of opinion that there was error in the charge of the court as to the measure of damages; and we are still of that opinion. We think the assignments of error upon all other points were correctly disposed of in the opinion of the Court of Civil Appeals, and therefore deem it unnecessary to discuss them here.
The charge of the court as to the measure of damages is as follows: *355
"If you find for plaintiffs as damages you will find that sum of money as will be a fair and just compensation for the injuries received by Mrs. Clark, the pain and distress of mind she endured, if any, and the expense for medical aid.
"The damages for injuries to her, you will estimate the value of service she was capable of performing and did perform in her relation to her duties before said injury, any impairment of her capacity to perform said services. And if you find these injuries are permanent, then you will estimate the value of such services as she would reasonably perform during the expectancy of her life."
The damages recoverable in this case were compensation for the physical and mental suffering Mrs. Clark had endured up to the time of the trial and such suffering of a like character as she would reasonably and probably undergo in future as a result of her injury; for such reasonable expense as had been incurred in the treatment of her injury; and also compensation for the loss that had already been sustained by reason of such inability to perform her ordinary duties as had resulted from her injuries and such loss as might reasonably and probably accrue thereafter from such inability. That the latter part of the charge quoted does not correctly state the measure of damages we think clear. That it is misleading we think equally true. Its structure indicates that some words have been inadvertently omitted — the omission being presumably the result of the haste ordinarily incident to preparing such instructions.
For the error in the charge the judgments of the District Court and that of the Court of Civil Appeals are reversed and the cause remanded for a new trial.
Reversed and remanded.