Johnson v. Connecticut Co.

George W. Wheeler, J.

Thе plaintiff was a passenger on defendant’s trolley-car, and the verdict of the jury imports that she suffered the injuries complained of through an explosion caused by a defective controller, which the defendant in the exercise of its duty would have discovered and remedied; and that the plaintiff’s physical injuries were severе, and resulting therefrom was a highly nervous condition of chronic neurasthenia or nervous exhaustion.

The defendant complains that evidence of future apprehended injuries, which were merely possible, was received against its objection; and, further, that the court refused to instruct the jury, in accordance with its request, that reсovery could only be had for those injuries “which are reasonably certain to ensue,” and, for “apprehended future consequences of an injury,” only those оf which there is “such a degree of probability of such consequences as to amount to reasonable certainty.” •

Injuries in tort actions which are merely possible are speculative, and can furnish no basis for a recovery of damages. Pullen v. Boston Elevated Ry. Co., 208 Mass. 356, 94 N. E. 469.

In some jurisdictions, in tort, the rule of damages includes prospective injury in those instances only where ‍‌​‌​‌‌​​‌‌‌​​‌‌​‌​‌​‌‌‌‌​​‌‌‌‌​‌​‌​‌‌‌​​​‌‌‌​‌​‌‍the apprehended consequences are such as in the ordinary course of nature are reasonably certain to ensue. Chicago, M. & St. P. Ry. Co. v. Newsome, 154 .Fed. Rep. 665, 83 C. C. A. 422; Williams v. Clark County, 143 Iowa, 328, 120 N. W. 306; Hardy v. Milwaukee Street Ry. Co., 89 Wis. 183, 187, 61 N. W. 771.

“Certainty” is freedоm from doubt, and if a plaintiff is required to prove that future apprehended consequences are reasonably free from doubt, he has imposed upon him a burdеn far beyond the ordinary requirement of proof in a civil action and approximating closely to the proof beyond a reasonable doubt of the criminаl action. Other jurisdictions hold that all that is meant by the reasonably certain rule is that there must be such a degree of probability as amounts to a reasonable probability. Brininstool v. Michigan United Rys. Co., 157 Mich. 172, 180, 121 N. W. 728; Watson on Damages for Personal Injuries, § 384; Booth on Street Railways (2d Ed.) § 409.

“Reasonable certainty” and “reasonable probability” bear no resemblance to each other, and judicial construction which brings them into apposite relation seems to us forced, perhaps, to save the appearanсe of a rule which violates a fundamental of the theory of evidence. This attempt has been aided by text-book writers, who no doubt saw that the requirement of prоof of future injuries to a reasonable certainty was' an exception to the ordinary requirement of proof.

“A presumption, or a probability, ... is an inference as to the existence or non-existence of one fact from ‍‌​‌​‌‌​​‌‌‌​​‌‌​‌​‌​‌‌‌‌​​‌‌‌‌​‌​‌​‌‌‌​​​‌‌‌​‌​‌‍the existence or non-existence of some other • fact, founded on a previоus experience of that connec tion.” Fay v. Reynolds, 60 Conn. 217, 220, 21 Atl. 418. And when the trier has a reasonable belief of the probability of the existence of a fact material to the issue it is its duty to find it. Hoyt v. Danbury, 69 Conn. 341, 348, 37 Atl. 1051; Finken v. Elm City Brass Co., 73 Conn. 423, 47 Atl. 670.

In tort the plaintiff must recover in a single action all of his damage. The consequences of an injury cannot be definitely predicted. The plaintiff should be pеrmitted to prove those results which are likely to happen, that is, those which are reasonably probable, for that is but establishing results which under like circumstances generally come to pass. When a plaintiff has by a fair preponderance of the evidence satisfied the jury that future pain and suffering in consequence оf his injury is reasonably likely, or probable, or to be expected, he should be compensated for these as well as for those which are certain to oсcur. Smedley v. Hestonville, M. & F. P. Ry. Co., 184 Pa. St. 620, 626, 39 Atl. 544; Amos v. Delaware River Ferry Co., 228 Pa. St. 362, 369, 77 Atl. 12; Pullen v.Boston Elevated Ry. Co., 208 Mass. 356-358, 94 N. E. 469; Arkansas City v. Payne, 80 Kan. 353, 102 Pac. 781; Lentz v. Dallas, 96 Tex. 258, 72 S. W. 59; Snook v. Anaconda, 26 Mont. 128, 66 Pac. 756; Norfolk Ry. & Lt. Co. v. Spratley, 103 Va. 379, 49 S. E. 502; Colby v. Inhabitants of Wiscasset, 61 Me. 304, 306; Hale on Damages (1896 Ed.) § 30.

“In civil actions it is not necessary that the triers should be free from all reasonable doubt as to the proper conclusions to be drawn from the evidencе.” Hoyt v. Danbury, 69 Conn. 341, 348, 37 Atl. 1051. One end of the law is to end controversy, and to accomplish this courts may rest their judgments in civil actions upon reasonable probabilities. ‍‌​‌​‌‌​​‌‌‌​​‌‌​‌​‌​‌‌‌‌​​‌‌‌‌​‌​‌​‌‌‌​​​‌‌‌​‌​‌‍The law esteems thе fact which in all reasonable likelihood will occur, as existent. Much of the confusion in the authorities has come from assertion of the reasonable certainty rule in the case of Strohm v. New York, L. E. & W. R. Co., 96 N. Y. 305, 306. And while this case has been frequently followed by the inferior courts of New York and also in Briggs v. New York Central & H. R. R. Co., 177 N. Y. 59, 62, 69 N. E. 223, the Court of Appeals of New York has, in Cross v. Syracuse, 200 N. Y. 393, 396, 94 N. E. 184, said: “The prevalent mistake in regard to that decision [Strohm v. New York, L. E. & W. R. Co.] is the supposition that it forbade the introduction of any opinion evidence as to the probable consequences of an existing condition due to injury unless the opinion could be pronounced with reasonable certainty. The Strohm case in fact laid down no such rule.” Griswold v. New York Central & H. R. R. Co., 115 N. Y. 61, 64, 21 N. E. 726; Feeney v. Long Island R. Co., 116 N. Y. 375, 382, 22 N. E. 402. The defendant’s criticism that the evidence оf possible injuries should have been excluded is well taken.

But we think the court, in its instructions, so placed the rule of damages before the jury that they could not have cоnsidered the subject of possible damages without disregarding the instructions. The charge limited the recovery to the fair and reasonable compensation for thе injuries, physical and mental, which the jury found by a fair preponderance of the evidence the plaintiff has undergone, or will undergo, as a result of her injuries, and which ‍‌​‌​‌‌​​‌‌‌​​‌‌​‌​‌​‌‌‌‌​​‌‌‌‌​‌​‌​‌‌‌​​​‌‌‌​‌​‌‍wеre the natural and proximate consequences of the defendant’s negligence. And the jury were told that they might include compensation for any permanent injuries, if they found such had so resulted, and that as to these they were to consider the “probabilities of her future improvement rather than possibilities of non-improvement.” Thе instructions upon the elements of recovery were clear, and the presentation of this subject was fair to each party.

We think the jury must be assumed to have done their duty, and taken the law as given them by the court, and hence that they rendered their verdict having in mind that only just compensation for the proximate consequenсes of the defendant’s negligence could be awarded, and that their consideration of what injuries the plaintiff would suffer in the future must have been confined to those they found to be probable and not to those they found to be possible. Gorman v. Fitts, 80 Conn. 531, 534, 69 Atl. 357; Scholfield Gear & Pulley Co. v. Scholfield, 71 Conn. 1, 23, 40 Atl. 1046.

With these definite instructions before them, it seems quite unreasonable to conclude that the jury disrеgarded them and considered a possible result suggested by one of the plaintiff’s experts, without any suggestion that such was the natural and proximate result.

Upon this subject thе defendant requested the court to charge: “If you find a verdict for the plaintiff in the case of Rosa Johnson, the damages which you should award are for those injuriеs which the plaintiff has proven by a fair preponderance of the evidence to have been sustained, and for any other injuries or disorders which are reasonably certain to ensue. Consequences which are speculative or merely possible are not proper to be considered by you in estimating damages. In order for the plaintiff to recover damages presently for apprehended future consequences of an injury, there must be such a degree of probability of such consequences as to amount to reasonable certainty that they will result from the original injury.”

This request must be treated as a whole. One of its sentencеs, “consequences which are speculative or merely possible are not proper to be considered by you in ‍‌​‌​‌‌​​‌‌‌​​‌‌​‌​‌​‌‌‌‌​​‌‌‌‌​‌​‌​‌‌‌​​​‌‌‌​‌​‌‍estimating damages,” was sound law, and was substаntially complied with. The rest of the request was an assertion of the “reasonable certainty” rule, which we have already discussed and disapproved of. The сourt was correct in refusing to give the “reasonable certainty” rule, and in substantially adopting the rule that damages for future injuries must be confined to those which are found by the jury to be reasonably probable.

We agree with the defendant’s counsel that the case of Murphy v. Connecticut Co., 84 Conn. 711, 81 Atl. 961, affords no countenance of the doctrine that a recovery may be had for speculative or possible injuriеs. In that case some evidence of a possible injury was received without objection, and no specific request was made to . the court concerning the recovery of future apprehended consequences. And we construed the charge as a whole to limit the recovery to such future injuries as were prоbable. We said: “The defendants’ contention, that from the size of the verdict it is more than probable that the passages from the instructions of the court, above quoted, improperly influenced the jury to consider damages of merely a conjectural or of a speculative character, is not borne out by the record.”

There is no error.

In this opinion the other judges concurred.

Case Details

Case Name: Johnson v. Connecticut Co.

Court Name: Supreme Court of Connecticut

Date Published: Jun 13, 1912

Citation: 83 A. 530

Court Abbreviation: Conn.