Section A.—Thе appellee, Sam Ayres, brought this suit to recover damages on account of personal injuries received by him while a passengеr of the defendant upon its cars. The injuries are alleged to have resulted from the derailment of the coach in which the plaintiff was riding at the time, and the derailing of the car is charged by the plaintiff to defects in the roadbed and cars of the defendant, as well as to the inсompetency and negligence of its servants who were in charge of the train. A verdict and judgment were rendered in favor of the plaintiff fоr $1000 as actual damages, and the defendant appealed.
The plaintiff claimed damages for mental and physical suffering, and also for the permanent injury to his neck and shoulder. His neck is alleged to have been “wrenched and its use permanently impaired.” There was evidence sufficient to support these allegations; but, on the other hand, the defendant offered testimony, both direct and circumstantial, which tended directly to disprove the plaintiff’s claim that any of the injuries were of a permanent character.
The defendant requestеd the following charge, which was refused: “Should you find for the plaintiff, you are instructed that he can only recover for such injuries as the proof shows affirmatively that he has sustained as a direct result of the negligence of the defendant, and unless it is shown affirmatively by a fair prepondеrance of the evidence that the plaintiff’s injuries are of a permanent character, you will disallow his claim for injuries of that character.” -
The refusal of the court to allow this instruction is assigned as error. The court in its general charge had instructed the jury on this point to the following effect: That if they believed from the evidence “the plaintiff sustained the injuries complained of by him, and that the accident occurred by reason of the fact that the defendant’s roadbed or track at the place of the accident was not in good and sаfe condition, * * * then the plaintiff would be entitled to recover compensation for the actual damages he had sustained by reasоn of such injuries, including physical pain and mental suffering, and you may also consider the probable effect, if any, of such injuries on plaintiff in impairing the proper use of his neck and shoulder.”
We are of the opinion that under the facts of this case the court erred in refusing to allоw the above special instruction as requested by the defendant. Had no additional instruction been requested upon *270 the point, the charge of the court would have perhaps been deemed sufficient; but as the evidence was conflicting, it was the sole province of the jury to determine whether or not the probable effects of the injuries would be to impair the proper or natural use of plaintiff’s nеck and shoulder in the future, and the defendant was consequently entitled to an affirmative presentation by instructions to the jury of the negative side of the question.
Appellant’s counsel also present the following assignment of error: “The court erred in permitting the plaintiff’s witness Dr. S. D. Thurston to testify as to his оpinion as to the nature, character, and extent of plaintiff’s injuries, based upon plaintiff’s statement made to him long after he recеived the injuries complained of in said suit, over defendant’s objection; because said evidence was incompetent, irrelevant, аnd no part of the res gestae as set out in plaintiff’s first bill of exceptions.”
We need only say of this assignment, that if the declarations of the plaintiff made to his physician concerning his condition were contemporaneous with pain or suffering upon his part which resulted from the оriginal injuries, then the admission of the doctor’s professional opinion, predicated upon such statements, would not be improper; оtherwise, such an opinion ought not to be received without further proof as - a predicate. The statements of the patient, however, are not required to have been made at the time of the injury, or even so near thereto as to constitute a part of the rеs gestee of the first transaction. The rule upon the subject has already been definitely settled by the Supreme Court. Newman v. Dodson,
We will now consider the remaining assignment of error, which is to the following effect: “The court erred in permitting the plaintiff Ayres to testify, over defendant’s objection, that two or three weeks after the accident he had returned to the place of its occurrence, and that defendant had repaired the track and fixed it up, but that he did not know that the track had been repaired except as a matter of inference frоm what he then saw, etc., to all of which evidence the defendant excepted, on the ground that it was irrelevant, incompetent, and impertinent, and calculated to mislead and confuse the jury.”
The defendant had introduced a mass of testimony to show that its cars, track, and roadbed were in good condition, and that its train was controlled by competent operatives and run at a reasonable rate оf speed at the time of the injury, in order to rebut the presumption of negligence arising from the facts that the car was derailed and the plaintiff
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injured. Railway v. Smith,
On account of the errors indicated, we think that the judgment should be reversed and the cause remanded.
Reversed and remanded.