Pullen v. Boston Elevated Railway Co.

208 Mass. 356 | Mass. | 1911

Loring, J.

The presiding judge told the jury that “if the [plaintiff’s] physical condition is such that it may, or may not, involve future expense, she would be entitled to have that considered”; also, “If it [the plaintiff’s physical condition] did not necessarily involve that [future expense], but it might happen in the future, that would be a thing for you to consider as in the future ”; and lastly, the bill of exceptions states that “ The judge further instructed the jury that the plaintiff would have the right to consider the ‘ possibility that an operation in the future might be necessary’ on the question of damage.” We interpret this last part of the charge to mean that the judge told the jury that the plaintiff would have the right to have the jury consider the possibility that an operation in the future might be necessary.

A plaintiff is entitled to compensation for all damages that ' reasonably are to be expected to follow, but not to those that possibly may follow, the injury which he has suffered. He is not restricted to compensation for suffering and expense which by a fair preponderance of the evidence he has proved will inevitably follow. He is entitled to compensation for suffering and expense which by a fair prepoderance of the evidence he has satisfied the jury reasonably are to be expected to follow, so far as human knowledge can foretell. There are many cases where the suffering and expense following an injury cannot be foretold with exactness. The fact that suffering and expense cannot always be foretold with exactness is a fact which the jury have to deal with in determining what suffering and expense reasonably will follow as distinguished from what possibly may follow. Fry v. Dubuque Southwestern Railway, 45 Iowa, 416. Strohm v. New York, Lake Erie Western Railroad, 96 N. Y. 305. Chicago City Railway v. Henry, 62 Ill. 142. Further cases are collected in 13 Cyc. 31, 32. See also Sedgwick, Damages, (8th ed.) § 172.

It is probable that the presiding judge did not intend to go further than to tell the jury that in case of the injury here in question human knowledge could not foretell the future with exactness, and that they must consider that fact in determining what it was proved by a fair preponderance of the evidence were the damages which were reasonably to be expected to follow, as distinguished from those that might follow.

But what the judge said was not so limited. The jury might well have understood that they were at liberty to give damages for what might happen as distinguished from what was reasonably to be expected would happen. Taking the last part of the charge as an example: The jury might well have understood that they could consider and give the plaintiff damages for the possibility that an operation in the future might be "necessary, although they were not satisfied by a fair preponderance of the evidence that so far as could be foretold it was reasonably to be expected that it would be necessary. The judge’s attention was called to this part of the charge and he refused to modify it.

The result is that the exceptions must be sustained but the new trial must be confined to damages.

So ordered.